(dissenting) — Under both the federal and state constitutions, a defendant is guaranteed the right to present evidence in his or her defense and the right to confront and cross-examine adverse witnesses.1 Because I believe Jose Ayala was denied these constitutional rights, I must respectfully dissent.
The majority frames the issue in this appeal as whether the trial court erred by interpreting the kidnapping statute, RCW 9A.40.020(1), as applied to the particular facts of this case. In so doing it reaches the conclusion that the trial court properly excluded irrelevant facts from trial. I disagree. Instead, I would frame the issue as follows: Did the trial court abuse its discretion when it denied Mr. Ayala the opportunity to exercise his Sixth Amendment right to present relevant evidence in his defense? I would answer this question in the affirmative.
“A court must consider a defendant’s constitutional right to present a defense.” State v. Jordan, 106 Wn. App. 291, 302, 23 P.3d 1100 (2001) (Brown, J., concurring), review denied, 145 Wn.2d 1013 (2001). Here, Mr. Ayala was charged with first degree kidnapping of a 14-year-old juvenile. The majority states “Mr. Ayala contends the kidnapping statute does not apply here . . . .” Majority at 484. I conclude this statement is misleading. Mr. Ayala understood that charging decisions lie within the province of the prosecutor’s office subject to certain constitutional constraints. Mr. *488Ayala accepts that he was charged with kidnapping. His argument on appeal is that being so charged, he should have been given the opportunity to defend against the charge. Accordingly, his defense theory is that there never was any type of kidnapping plot. Rather, he intended to prove to the jury that the juvenile was not kidnapped on the date in question, but instead, was a coconspirator in a plot to extort money from the juvenile’s father. However, the trial court would not allow at trial any evidence or cross-examination on the extortion theory. I believe this was an abuse of the court’s discretion.
The law states that Mr. Ayala has the constitutional right to refute the State’s charge by presenting a defense consisting of relevant and admissible evidence. State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996); State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992). The Supreme Court has described the importance of this right:
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967), cited with approval in State v. Smith, 101 Wn.2d 36, 41, 677 P.2d 100 (1984).
Evidence is relevant and admissible when it has any tendency to make the existence of any fact more or less probable, provided other rules do not preclude its admission. ER 401, 402. “All facts tending to establish a theory of a party, or to qualify or disprove the testimony of his adversary, are relevant.” Fenimore v. Donald M. Drake Constr. Co., 87 Wn.2d 85, 89, 549 P.2d 483 (1976) (citing Ladley v. St. Paul Fire & Marine Ins. Co., 73 Wn.2d 928, 442 P.2d 983 (1968)).
*489As noted by the majority, in response to Mr. Ayala’s request to present evidence of the extortion plan, the State argued and the court agreed that presenting defense witnesses and/or cross-examining the juvenile on his alleged participation in the alleged extortion scheme was irrelevant to the charge of kidnapping since, according to the statute, the juvenile’s age prevented him from having the legal capacity to acquiesce in a kidnapping scheme. This is a true statement of the law. However, under these facts, it is clear that the court misunderstood Mr. Ayala’s reason for attempting to present witnesses regarding the extortion scheme. It was not as proof that the juvenile acquiesced in a kidnapping scheme, but was instead, an attempt to explain his side of the story. For these reasons, Mr. Ayala’s proposed testimony/cross-examination regarding the alleged extortion plot is both relevant and admissible.
Finally, it has always been the fact finder’s duty to judge the credibility of witnesses at trial. Here, the trial court circumvented the process by not allowing the jury to hear and view Mr. Ayala’s cross-examination of the juvenile or the defense witnesses regarding the alleged extortion plot. It is vital to our system of jurisprudence that the fact finder has the opportunity to hear both sides of any controversy. I would reverse and remand for a new trial based on the court’s abuse of discretion in refusing to allow Mr. Ayala to present to the jury a thorough representation of all the facts surrounding this case.
Review denied at 145 Wn.2d 1031 (2002).
U.S. Const. amend. VI; Const. art. I, § 22 (amend. 10); Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974) (right to confront adverse witnesses); Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973) (right to confront adverse witnesses); Washington v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) (right to present evidence in one’s defense); State v. McDaniel, 83 Wn. App. 179, 185, 920 P.2d 1218 (1996) (right to cross-examine).