State Of Washington, V Marcos Roberto Lozano, 45242-1

Background

Lozano met A.B. and C.C. online; on Feb. 7, 2009 the three went to Lozano’s bedroom where A.B. fell asleep on a couch after drinking. Lozano had sexual intercourse with A.B.; she later woke unclothed and disoriented and saw Lozano; a condom was discarded.
The State charged Lozano with second-degree rape, alleging A.B. was incapable of consent due to physical helplessness or mental incapacity. Lozano was convicted at a second jury trial in 2013; this appeal follows affirmance of that conviction.
At trial Lozano’s theory included that A.B. consented and, alternatively, that he reasonably believed she could consent; the court instructed the jury on RCW 9A.44.030(1) (defendant must prove reasonable belief by a preponderance).
Lozano did not request a separate jury instruction labeling ‘consent’ as an affirmative defense; he presented expert testimony about alcohol-induced blackouts and confabulation.
Trial rulings also excluded (1) portions of a third-party (Young) transcribed statement as hearsay after the State used a small portion to refresh Young’s memory, and (2) sexually suggestive MySpace photographs of the women as irrelevant and unduly prejudicial; the court allowed limited evidence of Lozano’s prior arrest only for its effect on A.B.’s delayed report.

Issues

Issue	Lozano’s Argument	State’s / Respondent’s Argument	Held
Whether the jury instruction requiring Lozano to prove by preponderance that he reasonably believed the victim could consent violated due process	Instruction unconstitutionally shifted burden of proof to defendant and negated elements of the charged crime	The reasonable-belief rule is a statutory affirmative excuse that does not negate the State’s element that the victim was incapable of consent; placing burden on defendant is permissible	Instruction upheld: no due process violation because the defense does not negate an element of second-degree rape when State alleges incapacity due to helplessness/incapacity (RCW 9A.44.030(1))
Whether counsel was ineffective for not requesting a consent instruction	Counsel was deficient for failing to request a consent instruction and this prejudiced Lozano	Consent is not an affirmative defense to second-degree rape when State’s sole theory is victim’s incapacity; an instruction would have been legally superfluous	Claim denied: no deficient performance because consent would not be a proper affirmative defense under the charging theory; no prejudice shown
Whether the trial court erred in excluding Young’s transcribed statement after the State used part to refresh Young’s memory (ER 106 / confrontation / right to present a defense)	Exclusion deprived Lozano of ability to present a complete statement and to confront witness; ER 106/common-law completeness required admission	The State did not introduce the transcript into evidence; the transcript was hearsay (not a party admission) and no applicable hearsay exception was shown; ER 106 therefore inapplicable	No error: exclusion proper because offered material was hearsay and not admitted by the State; constitutional right not violated by exclusion of inadmissible evidence
Whether exclusion of MySpace photos and other evidentiary rulings (and handling of evidence of prior arrest) were erroneous or led to ineffective assistance	Photos were relevant to victim credibility/character and exclusion harmed defense; counsel ineffective for not seeking mistrial over officer’s testimony about prior investigation	Photos lacked factual similarity to charged incident, risked undue prejudice and implicated rape-shield law; limited prior-arrest evidence was admissible for limited purpose; curative instruction sufficed	No abuse of discretion or ineffective assistance: photos properly excluded; prior-arrest references were limited and harmless; mistrial not warranted

Key Cases Cited

State v. W.R., 181 Wn.2d 757 (2014) (due-process limits on allocating burden for defenses that negate elements; consent negates forcible compulsion)
State v. Fry, 168 Wn.2d 1 (2010) (affirmative defenses may be allocated to defendant when they excuse otherwise culpable conduct)
State v. Lough, 125 Wn.2d 847 (1994) (when State proves victim was incapable of consenting, a defendant’s consent defense is legally superfluous)
State v. Box, 109 Wn.2d 320 (1987) (insanity does not negate premeditation; test whether defense negates an element is whether completed crime and defense can coexist)
Strickland v. Washington, 466 U.S. 668 (1984) (legal standard for ineffective assistance of counsel: deficiency and prejudice)