Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                    No. 65866-2-I
                       Respondent,
        v.                                          DIVISION ONE

 JOEL M. KAHORA,                                    UNPUBLISHED OPINION

                                                    FILED:  March 12, 2012
                       Appellant.

        Leach, J.  --  Joel Kahora appeals two convictions for third degree assault 

 committed against his daughters.  He contends that the trial court violated his 

 right to present a defense and confront adverse witnesses by limiting the scope 

 of cross-examination.  He claims this prevented him  from             fully developing

 evidence of his daughters' credibility and motives to lie about the assaults.  

 Because the trial court acted within its discretion, we affirm.  

                                      Background

        In 2004, Kahora and his family moved from Kenya to the United States, 

 settling in Massachusetts.  Over the objections of Kahora's teenage daughters, 

 M.M. and E.M., Kahora and his wife, Annsarah Mboya, moved the family to 

 Washington state in the summer of 2009.        E.M. and M.M. started high school in 

 Kent that fall. 

No. 65866-2-I / 2

       One Sunday evening in October, Kahora asked E.M. and M.M. to clean 

the kitchen.  M.M. complied and began wiping the counter but did not want to 

perform the chore.  Kahora asked M.M. why she had an attitude.  M.M. told him 

that she was tired from staying up late the night before.      Kahora grabbed M.M.'s 

hand and twisted it as she tried to pull it away.  M.M. called for Mboya, who was 

in her bedroom.  Kahora grabbed and held M.M.'s head, removing her scarf.  As 

M.M. ran from Kahora, he kicked her in the hip.  E.M. came out of her bedroom 

and saw Kahora moving toward M.M.  When E.M. tried to intervene, Kahora 

slapped her on the side of the head and kicked her in the left thigh.  

       At school the next day, M.M. confided to a friend and to her teacher, Lisa 

Clarke, that Kahora had physically harmed her the night before.  Clarke sent 

M.M. to the school counselor, who called E.M. to her office and alerted Child 

Protective Services (CPS) and the police.  When Officer Carrie Nastansky 

arrived at the school, she noticed E.M.'s swollen ear.  She also observed M.M. 

holding her arm in pain.  E.M. and M.M. were taken to a hospital for treatment 

after speaking with the police and with a CPS social worker. 

       A doctor diagnosed E.M. with a ruptured eardrum.  M.M. was diagnosed 

with cervical strain and wrist sprain with a possible navicular fracture.1        While 

M.M. had no visible injuries to her hip or neck, she experienced tenderness upon 

palpation   in both areas.  According to one medical witness, the girls'

descriptions of what had occurred to them were consistent with the physical 

       1 The navicular bone is located in the wrist.

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No. 65866-2-I / 3

findings.

       CPS removed E.M. and M.M. from their parents' care and placed them in 

the same foster home.  Neither E.M. nor M.M. wanted to resume living with 

either of their parents, and both expressed a continued desire to move back to 

Massachusetts.  M.M. later changed her mind about leaving Seattle once she 

joined a track club she liked.  M.M. moved out of the foster home with her sister 

after CPS approved M.M. to live with her track coach.

       The State charged Kahora with two counts of second degree 

assault -- domestic violence.  Kahora defended with the claim that M.M. and E.M. 

fabricated the assaults so they could move back to Massachusetts.  Kahora 

sought to support his claim with evidence offered to show M.M.'s and E.M.'s 

biases and motives to lie.       This  included evidence that (1) M.M. displayed 

behavioral problems in her first foster care placement and complained to her 

CPS social worker that her foster mother provides for her "needs" but not for her

"wants" and (2) M.M. requested that CPS place her with her track coach, even 

though she knew her track coach had a previous domestic violence conviction.  

Kahora argued that this evidence demonstrated the lengths that M.M. would go 

to in order to get what she wanted.

       The State objected, arguing that the evidence was not relevant and was 

unduly prejudicial.  The trial court excluded the proffered evidence, finding that 

the evidence's potential for prejudice and for misleading the jury outweighed its 

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No. 65866-2-I / 4

relevance.  However,       the trial court permitted Kahora        to introduce other 

testimony regarding E.M.'s and M.M.'s biases and motives to fabricate the story 

against him.2

       Kahora testified in his own defense.  He told the jury that before the family 

moved to Washington, M.M. said to him that she would "do everything I can" not 

to go.  Kahora provide the following description of the kitchen incident.  That 

night he was making tea for himself and Mboya when E.M. came out of her room 

to clean the kitchen.  Kahora said M.M. entered the kitchen a few minutes later 

and began to argue with E.M.  When Kahora asked them why they were arguing, 

M.M. explained that she did not want to clean because she was tired.  Kahora 

told M.M. that she had to complete the chore anyway.  M.M. got angry and 

punched him in the back of the neck.  M.M. told Kahora he had too much pride, 

       2 The trial court permitted the defense to introduce the following evidence: 
(1) M.M. spoke to one of her teachers in Massachusetts about wanting to stay; 
(2) before moving to Washington, M.M. made efforts to emancipate herself; (3) 
the family discussed the move with their pastor in Massachusetts, who offered to 
allow M.M. and E.M. to stay with him; (4) the family spoke with a CPS worker in 
Massachusetts, and M.M. told him that she wanted to stay in Massachusetts 
because she did not want to leave her friends and wanted to attend Harvard; (5) 
even after they moved to Washington, E.M. and M.M. continued to ask their 
parents to move back to Massachusetts; (6) on the night of the assault, M.M. told 
Kahora that he would have to break down his pride if he wanted to be a "true 
servant of god" and that she would "bring [Kahora] down"; (7) after CPS became 
involved, M.M. and E.M. insisted on being returned to Massachusetts, and CPS 
worker Anna Tran contacted their pastor in Massachusetts in order to plan to 
send the girls back; (8) M.M. and E.M. did not wish to be placed with their 
mother, even if she was not living with Kahora; (9) after the assault, M.M. wrote 
her mother asking for permission to return to Massachusetts; (10) M.M. changed 
her mind about moving after she had an opportunity to be involved in a Seattle 
track club; and (11) E.M. continued to talk about returning to Massachusetts
after moving to Washington.  

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No. 65866-2-I / 5

saying he "had to break down that pride to be a true servant of god."         M.M. also 

allegedly told him, "I will bring you down, that pride of yours."          Kahora then 

moved toward M.M. but stopped when E.M. placed her hand on Kahora's 

collarbone in a "sign of peace." Kahora denied touching either M.M. or E.M. 

       Kahora argued in closing, 

              [M.M.]   and  [E.M.]  are getting exactly what they wanted, 
       something they couldn't have a year ago.           [E.M.], regardless of 
       what happens in this trial, she is going back to Massachusettss
       [sic].  
              And then there is [M.M.].  What does she want?  She was
       concerned about her school.  She was concerned about her track 
       career, and she thought the best place                for that was in 
       Massachusetts, and she wants to go back for those reasons.  
              Now she wants to stay here.  She found a track coach who 
       is willing to support her and give her what             she wants, her 
       opportunities.  She is getting exactly what she wanted.  [M.M.] and 
       [E.M.] would not be in the position they are today unless Mr. 
       Kahora is here today.

The jury acquitted Kahora of second degree assault but convicted him on two 

counts of the lesser included offense of third degree assault.  Kahora appeals.

                                 Standard of Review

       "We review alleged violations of the state and federal confrontation 

clauses de novo."3      We review a trial court's ruling on the admissibility of 

evidence for an abuse of discretion.4      An abuse of discretion occurs when the 

trial court's exercise of its discretion is manifestly unreasonable or based upon 

       3 State v. Medina, 112 Wn. App. 40, 48, 48 P.3d 1005 (2002) (citation 
omitted).
       4 State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002).

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No. 65866-2-I / 6

untenable grounds.5  

                                       Analysis

       Kahora claims the trial court violated his right to present a defense and 

confront witnesses by limiting the scope of cross-examination.  The confrontation 

clause guarantees a criminal defendant the right "to be confronted with the 

witnesses   against him."6      This includes the right to cross-examine those 

witnesses.7    But the right to cross-examine a witness is not absolute.8              A 

defendant does not have a constitutional right to present irrelevant evidence.9  

Generally, evidence of motive and bias is relevant to a witness's credibility.10

But a trial court properly limits cross-examination where the offered evidence 

only remotely tends to show bias or prejudice of the witness.11  While the scope 

of confronting a witness is within the trial court's discretion, 

       "[t]he exposure of a witness' motivation in testifying is a proper and 
       important function of the constitutionally protected right of cross-
       examination. . . . [A] criminal defendant states a violation of the 
       Confrontation Clause by showing that he was prohibited from 
       engaging in otherwise appropriate cross-examination designed to 
       show a prototypical form of bias on the part of the witness, and 
       thereby to expose to the jury the facts from which jurors . . . could 
       appropriately draw inferences relating to the reliability of the 
       witness."[12]

       5 Darden, 145 Wn.2d at 619.
       6 U.S. Const. amend. VI; Const. art. 1, § 22.
       7 Washington v. Texas, 388 U.S. 14, 19, 23, 87 S. Ct. 1920, 18 L. Ed. 2d 
1019 (1967).
       8 Darden, 145 Wn.2d at 620-21.
       9 State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
       10 State v. Lubers, 81 Wn. App. 614, 623, 915 P.2d 1157 (1996).
       11 State v. Knapp, 14 Wn. App. 101, 108, 540 P.2d 898 (1975).
       12 State v. Gregory, 158 Wn.2d 759, 883, 147 P.3d 1201 (2006) (some 

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No. 65866-2-I / 7

The more essential a witness is to the prosecution's case, the more latitude a 

trial court should afford a defendant to explore motive, bias, credibility, or 

foundational matters.13

       Kahora relies on State v. Peterson.14      In Peterson, the defendant sought 

to establish that allegations of indecent liberties with a minor were a fabrication 

initiated by the victim's older sister.15 The trial court limited cross-examination of 

the mother regarding the older sister's motives and involvement in initiating the 

complaint.   Reasoning that a defendant should be given great latitude in cross-

examining a prosecution witness to show motive or credibility, Division Two of 

this court reversed, stating,    "Failure to permit the defendant reasonably to 

pursue a valid theory constituted error which seriously jeopardized his defense 

to a heinous crime."16 We find Peterson factually distinguishable.  

       In  Peterson,  the defendant      sought to introduce      evidence having a 

sufficient nexus with his prosecution to show motive to fabricate.  And there, the 

trial court entirely denied the defendant the right to present evidence to attack 

the witnesses' credibility.  That did not occur here.      The trial court determined 

alterations in original) (internal quotation marks omitted) (quoting Olden v. 
Kentucky, 488 U.S. 227, 231, 109 S. Ct. 480, 102 L. Ed. 2d 513 (1988)).
       13 Darden, 145 Wn.2d at 619.
       14 2 Wn. App. 464, 469 P.2d 980 (1970).
       15 Peterson, 2 Wn. App. at 465.
       16 Peterson, 2 Wn. App. at 467; see also State v. York, 28 Wn. App. 33, 
34-37, 621 P.2d 784 (1980) (finding reversible error where trial court excluded
evidence probative of chief prosecution's witness's motivation to fabricate 
allegations, noting that the witness's questionable credibility was "the very 
essence of the defense").

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No. 65866-2-I / 8

the  offered evidence     was prejudicial, confusing, and       had little bearing on 

credibility.  However, the trial court permitted Kahora other avenues to explore

thoroughly   his daughters'    motives to lie and to challenge their          credibility. 

Kahora was allowed to present 11 of his 14 proposed categories of bias and 

motive evidence, including testimony that E.M. and M.M. did not want to move 

from Massachusetts, were angry with their parents for making the decision 

without them, tried to emancipate themselves, and wanted to go back to 

Massachusetts after they were removed from their parents' care.  In short, the 

trial court gave Kahora great latitude to explore his daughters' motives, biases, 

and credibility.17  Under these circumstances, we cannot conclude that the trial 

court abused its discretion or violated Kahora's right to present a defense and 

confront adverse witnesses.

                                      Conclusion

       Because the trial court did not abuse its discretion by excluding certain 

evidence of motive and bias, we affirm.

WE CONCUR:

       17 Darden, 145 Wn.2d at 619.

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