Opinion
No. 64243-0-I.
January 24, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 09-1-04035-1, Michael J. Fox, J., entered September 4, 2009.
Affirmed by unpublished opinion per Ellington, J., concurred in by Becker and Spearman, JJ.
Darrell Jones appeals his conviction for harassment and assault in the fourth degree. He contends the court erred by allowing prior bad act evidence under ER 404(b) and that the State engaged in prosecutorial misconduct.
FACTS
Darrell Jones and Ola Mae Milam lived together and were raising their baby and Milam's two children from previous relationships. After an argument in early May 2009, Jones left the couple's home with their baby, leaving most of his belongings at the house.
A few days later, on May 4, 2009, Jones returned. Milam's 13-year-old son, Jimmy Lee King, was also in the house. Jones called Milam and they argued. What happened next is disputed.
Jones testified he went to the house to retrieve his new truck but Milam was out driving it. After an argument with Milam over the phone, Jones smashed the household computer with a frying pan. King lunged at him with a carving fork and Jones was forced to push King and grab his arm in order to disarm him. Jones called Milam again to tell her what King had just done, and to ask her to hurry home.
King testified that Jones became frustrated talking to Milam on the phone, threw the phone hard enough to put a hole in the wall, and smashed the household computer with a frying pan. He called Milam again and threatened to hurt King if she did not return with the truck. He punched King in the side of the head and trapped him in the kitchen for about an hour, at one point threatening to shoot him. King testified he was fearful of Jones and armed himself with the carving fork for protection.
During these events, Milam dialed 911 four times. Police arrived and arrested Jones.
Jones was later charged with felony harassment, unlawful imprisonment, assault in the fourth degree, and malicious mischief. The first trial ended in a partially hung verdict. Jones was retried and convicted of harassment and assault in the fourth degree.
The harassment charge required the State to prove that Jones placed King in reasonable fear of bodily injury. At the first trial, the State offered evidence of an incident in 2008 in which Jones allegedly assaulted Milam. The court permitted King to testify about the incident to show he was reasonably afraid of Jones.
King was unavailable to testify at the second trial, so his testimony from the first trial was read to the jurors. In closing, Jones argued that the jury's ability to weigh the credibility of King's testimony was compromised because King was not physically present to testify. The prosecutor described this argument as "offensive," drawing a parallel to the ability of sight-or hearing-impaired jurors to consider live testimony:
[Jones] can tell you all day long that the State can't prove its case because you didn't have an opportunity to physically see Jimmy or hear Jimmy. Well, that's offensive, and let me tell you why it's offensive. Three reasons: First of all, Judge Fox told you how you were to consider Jimmy's testimony. He testified under oath, just like the other officers did. He swore to tell the truth, but this is why it's offensive: it's offensive because if you were all hearing-impaired or sight-impaired, you would still be qualified to sit on this jury. There would be accommodations made for you so that you could perceive Jimmy's testimony. You don't have to be able to see and hear and smell Jimmy Lee King to believe him.
Report of Proceedings (RP) (Aug. 26, 2009) at 168-69.
Jones did not object to this statement.
Jones assigns error to the evidence of the alleged 2008 incident and contends the State committed misconduct by denigrating the defense in closing argument.
DISCUSSION Admission of Alleged Prior Bad Act
Evidence of prior bad acts is generally not admissible to show a defendant acted in conformity with previous behavior. Under ER 404(b), however, such evidence may be admissible for other purposes.
ER 404(b); State v. Herzog, 73 Wn. App. 34, 49-50, 867 P.2d 648 (1994) (citing Michelson v. United States, 335 U.S. 469, 475-76, 69 S. Ct. 213, 93 L. Ed. 168 (1948)).
"[Evidence of other crimes, wrongs, or acts] may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ER 404(b).
Where the State offers evidence under ER 404(b), the trial court must (1) find by a preponderance of the evidence that the misconduct probably occurred; (2) identify the purpose for which the evidence will be admitted; (3) find the evidence materially relevant to that purpose; and (4) balance the probative value of the evidence against any unfair prejudicial effect it may have. The balance between probative value and unfair prejudice is a matter for the discretion of the court.
State v. Kilgore, 147 Wn.2d 288, 292, 296, 53 P.3d 974 (2002) (holding evidentiary hearing unnecessary for admission of evidence under 404(b)).
Herzog, 73 Wn. App. at 50-51.
A trial court abuses its discretion only if its decision is manifestly unreasonable or is exercised on untenable grounds or for untenable reasons. A decision is manifestly unreasonable if it falls outside the range of acceptable choices, given the facts and the applicable legal standard; the record does not support the factual findings; or the court misapplies the law.
In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997.
Id.
Here, the State offered King's testimony that he believed Jones assaulted Milam in 2008. The court heard King's testimony about the incident, and asked why King believed it was Jones who had assaulted Milam. King recounted seeing his mother's face bruised, swollen, and bloody, and said Jones asked why King had not asked about the fight. Jones told King a son was supposed to talk to people who harm his mother. The court found by a preponderance of the evidence that the 2008 domestic violence incident actually occurred and ruled the evidence relevant to "show whether or not [King's] fear was reasonable . . . whether or not he believed that he could be injured." The court also found that "the probative value outweighs the prejudice in this particular case."
RP (July 23, 2009) at 107; see also State v. Barragan, 102 Wn. App. 754, 758, 9 P.3d 942 (2000) (evidence of prior act against victim in prosecution for assault and harassment allowed to show victim reasonably feared defendant).
RP (July 23, 2009) at 107-08.
The court applied the appropriate standard for admission of evidence under ER 404(b). There was no abuse of discretion.
Prosecutorial Misconduct.
To establish prosecutorial misconduct, the defendant must show the prosecutor's conduct was both improper and prejudicial. Prejudice is established if the defendant shows a substantial likelihood that the misconduct affected the jury's verdict. Failure to object to alleged misconduct constitutes waiver of that claim unless the remark is so flagrant and ill-intentioned that it "evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury."
State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006).
Id.
State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995).
Jones' failure to object to the State's argument precludes review of this issue unless he can show that it resulted in incurable prejudice.
Jones contends the prosecutor's statement was "improper [and] unduly prejudicial." Jones does not explain how this statement prejudiced the jury, however. He merely asserts the prosecutor's statement was "inflammatory" and "denigrat[ed] the defense" because it implied defense counsel had insulted disabled jurors. This argument is insufficient.
Appellant's Br. at 15.
Id. at 14.
The court had already instructed the jury that it should consider King's testimony "just as if Mr. King had personally appeared and testified in a courtroom in front of you." We presume the jury follows the court's instructions. While the prosecutor's comparison was inapt, its purpose was consistent with the court's instructions regarding consideration of King's testimony. Further, any possible prejudice could easily have been cured by an instruction to the jury to disregard the comment. There is no basis for reversal.
RP (Aug. 26, 2009) at 12.
State v. Atkins, 156 Wn. App. 799, 813, 236 P.3d 897 (2010) (referring to jury instructions).
See RP (Aug. 26, 2009) at 169 (prosecutor urged the jury not to "just throw away, to totally discount Jimmy King's testimony" just because he was not physically present).
Affirmed.
WE CONCUR: