Opinion
No. 25029-6-III.
May 1, 2007.
Appeal from a judgment of the Superior Court for Walla Walla County, No. 05-1-00516-2, M. Scott Wolfram, J. Pro Tem., entered February 28, 2006.
Affirmed by unpublished opinion per Brown, J., concurred in by Sweeney, C.J., and Kulik, J.
Glen E. Llewellyn appeals his conviction for felony domestic violence violation of a protection order, contending (1) the evidence is insufficient to support his conviction, and (2) evidentiary error. We affirm.
FACTS
Courts have periodically issued restraining orders against Mr. Llewellyn to prevent contact with Delia Coronado, his former wife. In April 2002, Mr. Llewellyn was convicted of third degree assault. In section 4.4 of the judgment and sentence, it states, "[t]he defendant shall not have contact, directly or indirectly, with Delia Coronad [sic] or her family, for a period of 5 years." Exhibit 1. This section references a domestic violence protection order attached to the judgment and sentence as appendix 4.3. While the judgment and sentence is signed by the trial judge, appendix 4.3 is not. The appendix is, however, signed by the prosecutor, defense counsel, and Mr. Llewellyn.
In November 2005, Mr. Llewellyn contacted Ms. Coronado in Walla Walla and asked her to pick him up at a bus station in Pasco. She tried to put him off, and reported the contact to law enforcement. The police were initially unable to locate Mr. Llewellyn. When Mr. Llewellyn continued calling Ms. Coronado, she picked him up and left him at a motel. Then, Ms. Coronado led the police to Mr. Llewellyn.
Mr. Llewellyn was charged with domestic violence violation of a protection order under RCW 26.50.110(5). This crime is a class C felony if the offender has at least two previous convictions for violating a previous restraining order. RCW 26.50.110(5).
At trial, Ms. Coronado testified that Mr. Llewellyn had been convicted of violating restraining orders in the past. The State offered, without objection, two district court printouts showing Mr. Llewellyn was found guilty twice of "V-OFP" in 1991. Exs. 2 and 3. We understand the acronym to mean violation of an order for protection.
During cross-examination by defense counsel, Ms. Coronado was asked, "have there been times in the past when you think when — if I might quote you, you didn't quite know what you were thinking about allegations you have made against Mr. Llewellyn?" Report of Proceedings (RP) at 9. The State objected. Defense counsel responded: "This would go to credibility as to her truthfulness, your Honor." Id. After an unreported sidebar, the court sustained the State's objection.
When the State rested its case, Mr. Llewellyn objected to the 2002 judgment and sentence and appendix 4.3 because the appendix was not signed by a judge. Mr. Llewellyn argued it was not fair that the 1991 incidents should be considered to elevate the current incident to a felony. And, he argued the court erred in sustaining the State's objection to questioning Ms. Coronado about past complaints of restraining order violations.
The court ruled the signed judgment and sentence "incorporates the entire appendix," the "fairness issue" is best left to the legislature and the exclusion of testimony regarding Ms. Coronado's prior allegations stands. RP at 26.
The jury found Mr. Llewellyn guilty as charged, including a special finding that Mr. Llewellyn had "twice been previously convicted for violating the provisions of a protection order." Clerk's Papers at 35. He appealed.
ANALYSIS A. Prior Conviction Documentation
The issue is whether sufficient evidence supports Mr. Llewellyn's conviction of violating a protection order. He contends no evidence shows he had two prior convictions for violating a restraining order.
Initially, Mr. Llewellyn argues the protection order he was convicted of violating was unsigned and therefore unenforceable. The court correctly ruled the protection order was an appendix to the 2002 judgment and sentence and incorporated in the judgment and sentence signed by the trial judge. Mr. Llewellyn, defense counsel, and the prosecutor all signed the order. Minor clerical errors do not warrant reversal since they may be corrected at anytime by the court. CrR 7.8(a). The court's failure to sign the protection order appendix in the 2002 judgment and sentence is not reversible error.
Next, evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Id.
Mr. Llewellyn was convicted under RCW 26.50.110(5). It is a class C felony to violate a court order if the offender has at least two previous convictions for violating the provisions of an order issued under this chapter; chapters 7.90, 10.99, 26.09, 26.10, 26.26, or chapter 74.34 RCW; or a valid foreign protection order as defined in RCW 26.52.020. The previous convictions may involve the same victim or other victims specifically protected by the orders the offender violated. Salinas, 119 Wn.2d at 201.
Mr. Llewellyn argues insufficient evidence shows he was twice previously convicted of violating a restraining order. In general, the best evidence of a prior conviction is a certified copy of a judgment. State v. Descoteaux, 94 Wn.2d 31, 36, 614 P.2d 179 (1980), overruled on other grounds by State v. Danforth, 97 Wn.2d 255, 643 P.2d 882 (1982). The State, however, may introduce other documents or records in a prior proceeding to establish the defendant's criminal history. State v. Herzog, 48 Wn. App. 831, 834, 740 P.2d 380 (1987).
Here, the State offered two district court printouts, Exhibits 2 and 3, showing Mr. Llewellyn was twice convicted of "V-OFP," understood to mean violation — order for protection. Mr. Llewellyn did not object. Further, Ms. Coronado testified Mr. Llewellyn had been convicted, at least twice, of violating a restraining order in the past. Admitting the truth of the State's evidence and all reasonable inferences therefrom, a rational trier of fact could find the essential elements of felony domestic violence violation of a restraining order beyond a reasonable doubt. Thus, sufficient evidence supports the felony conviction in this case.
B. Evidence Ruling
The issue is whether the trial court erred by abusing its discretion in sustaining the State's objection to the offered testimony about prior restraining order accusations for the purpose of challenging Ms. Coronado's credibility and truthfulness. We review evidentiary rulings for abuse of discretion. State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). Discretion is abused if it is exercised without tenable grounds or reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Criminal defendants have a right to cross-examine and confront witnesses. State v. Russell, 125 Wn.2d 24, 73, 882 P.2d 747 (1994). But limits exist; the evidence sought must be relevant and the defendant's right to introduce relevant evidence must be balanced against the State's interest in precluding evidence so prejudicial as to disrupt the fairness of the fact-finding process. State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
The form of defense counsel's question to Ms. Coronado that is quoted in the facts is confusing and appears to ascribe to Ms. Coronado words that were not established in evidence. The court could sustain the objection because the form was confusing and assumed facts not in the record. Because we do not have a record of the sidebar, we cannot say the court abused its discretion.
Moreover, evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401. Mr. Llewellyn fails to show a nexus between Ms. Coronado's alleged untruthfulness and the issues of this case. Mr. Llewellyn does not contest his proscribed contact with Ms. Coronado. Further, specific instances of untruthful conduct are generally not admissible to show character or reputation for truthfulness. ER 608(b).
In sum, considering the lack of relevancy, the confusing challenge to Ms. Coronado's truthfulness, and the lack of a sidebar record, we cannot say the court abused its discretion in sustaining the State's objection.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR:
Sweeney, C.J.
Kulik, J.