State Of Washington, Resp v. John Lacey Looney, App, 75578-1

Police stopped John Looney for driving with a suspended license; he resisted arrest and kicked Officer Alexander Lever in the head. Looney was charged with third-degree assault.
At trial Officer Lever testified that Looney looked at him before the kick (eye contact). He acknowledged his initial police report did not mention eye contact and that the report was written the day of the incident.
On cross-examination defense counsel highlighted the omission from the report and asked whether Lever’s memory was fresher earlier, implying inconsistency based on memory.
On redirect the prosecutor sought to admit Lever’s statements to the defense investigator from the prior week (where Lever reportedly said there was eye contact) as a prior consistent statement to rebut a supposed charge of recent fabrication.
The trial court allowed limited questioning about the prior statement; Lever’s testimony about whether he told the investigator about eye contact was equivocal.
Looney was convicted; on appeal he argued the admission of the prior consistent statement was erroneous. The Court of Appeals affirmed, finding admission erroneous but harmless.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prior consistent statements were admissible to rebut recent fabrication	Looney: cross-examination only showed memory inconsistency, not fabrication, so prior consistent statement was hearsay and inadmissible	State: cross-examination raised an implicit charge of recent fabrication, so ER 801(d)(1)(ii) allowed prior consistent statements	The court held the brief cross-examination did not raise an inference of recent fabrication; admitting the prior statement was an abuse of discretion
Whether the error was harmless	Looney: erroneous admission prejudiced him and affected the verdict	State: any error was harmless because testimony was equivocal and not relied on at closing	The court held the error was harmless—no reasonable probability the outcome would differ without the testimony

State v. Bargas, 52 Wn. App. 700 (Wash. Ct. App. 1988) (prior consistent statements may rebut recent fabrication)
State v. Thomas, 150 Wn.2d 821 (Wash. 2004) (recent-fabrication claims may be implicit)
State v. McWilliams, 177 Wn. App. 139 (Wash. Ct. App. 2013) (mere cross-examination pointing out inconsistencies does not show fabrication)
State v. Makela, 66 Wn. App. 164 (Wash. Ct. App. 1992) (admission of prior consistent statement reviewed for abuse of discretion)
State v. Powell, 126 Wn.2d 244 (Wash. 1995) (standard for abuse of discretion)
State v. Gonzalez-Gonzalez, 193 Wn. App. 683 (Wash. Ct. App. 2016) (prejudice standard for evidentiary error)
State v. Cunningham, 93 Wn.2d 823 (Wash. 1980) (material effect standard for harmless error)