Opinion
No. 53734-2-I
Filed: April 25, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-10562-9. Judgment or order under review. Date filed: 12/16/2003. Judge signing: Hon. Ronald Kessler.
Counsel for Appellant(s), William Louis Cameron, Lee Smart Cook Martin Patterson, 701 Pike St Ste 1800, Seattle, WA 98101-3929.
Counsel for Respondent(s), Thomas F. Miller, Attorney at Law, PO Box 12406, Olympia, WA 98508.
Ronald Carl Richter appeals his conviction for assault in the first degree-domestic violence. Richter contends the trial court erred by precluding him from cross-examining the complaining witness about several occasions on which Richter called the police to report the witness's abusive conduct, and that his counsel was ineffective for failing to renew the request for admission of the same evidence after Richter elected a bench trial. Finding no merit in these arguments, we affirm Richter's conviction. We remand, however, for correction of a clerical error in Richter's judgment and sentence.
BACKGROUND
In February 2003, Richter lived with his girlfriend, Angela Stepan, despite having obtained a no contact order against her as a result of an incident that occurred in November 2002. One evening, Richter, Stepan, and their friends David Lawe and Ricardo Polido went to a bar. As they were leaving, Stepan ran into a friend, and she and Polido stayed at the bar while Richter and Lawe bought groceries for the evening meal. When Richter came back for Stepan, he became angry with her over conversations she had had with others in the bar. Stepan left with Richter, but returned to the bar after the two argued. Richter went to the bar soon after and told Stepan to get into his truck, which she did.
When they got home, Richter told Stepan to leave for two hours. While she was gone, Richter gathered Stepan's belongings and took them to the garage. Lawe attempted to prevent Richter from destroying the items, but Richter began pouring muriatic acid into a bag of Stepan's clothes. Stepan drove up as this was happening, and observed Richter and Lawe in the garage.
Muriatic acid is also known as hydrochloric acid.
Stepan testified that Richter yelled at her and told her "he was going to teach me a lesson, and I'm going to learn." Report of Proceedings (RP) (Oct. 22, 2003) at 98. Stepan stated she approached Richter to calm him, but before she could reach him, Richter threw the acid in her face. Lawe testified that Stepan had run into the garage to grab the bag away from Richter, and when she did, Richter threw the bottle of acid. Lawe opined that Richter did not intend to douse Stepan with the acid, but rather to throw the bottle aside.
Stepan was injured by the acid, and Lawe rushed her into the bathroom to flush her face with water. Polido assisted in the effort. Meanwhile, Richter called 911 for medical assistance, but insisted the police would take Stepan to jail for violating the no-contact order. Stepan initially resisted Lawe's and Polido's assistance and tried to leave because she was afraid she would be arrested.
When the police arrived, Richter told them that Stepan tackled him and they fell down, causing the acid to spill on them both equally. He later stated that there had been a tussle over the bottle, but they had not fallen down. Finally, Richter told the police that Stepan was exposed to the acid when she ran into him while he held the bottle.
Lawe told police he was not sure if Richter had thrown the bottle at Stepan on purpose, but that Richter was very mad at the time. At trial, Lawe testified he did not believe Richter had intentionally thrown acid on Stepan.
Stepan's injuries were severe. Her face was burned and scarred, and she is blind in her right eye despite two failed surgeries to restore vision. Richter's injuries, if any, were minor. King County Sheriff's Deputy Matt Tighe concluded after investigation that the nature and extent of Stepan's injuries were more consistent with an intentional act than with an accident.
Richter was charged with assault in the first degree-domestic violence. Richter moved to admit evidence of the several occasions on which he had called the police to report Stepan's abusive conduct. Richter claimed the calls were admissible to show that Stepan had a history of aggression, and to show that "once again, [he] was a victim of potentially [sic] domestic violence or a victim of her behavior." RP (Oct. 21, 2003) at 35-36. Richter argued the evidence was "relevant to what he did that night and what he is saying about what happened that night, and goes to the theory that this was not an intentional act, this was an accident, and this was another argument between the two of them. And she was aggressive in approaching him and then the accident occurred." Id. at 36-37.
The court denied the motion to admit evidence of the prior police calls, concluding that it was not relevant to the only issue in the case: whether Richter intentionally threw acid at Stepan. The court also indicated the evidence could confuse the jury. The court allowed evidence, however, that a no-contact order existed at the time of the incident, prohibiting Stepan from contacting Richer.
Following trial, the court found Richter guilty of first degree assault and sentenced him within the standard range. Richter timely appealed.
DISCUSSION
Richter contends the trial court's decision to exclude evidence of Richter's prior calls to the police deprived him of his constitutional right to confront and cross-examine witnesses. He argues the evidence was relevant to assess Stepan's credibility, and characterizes the court's ruling as based entirely upon the risk of confusing the jury. Richter further contends his trial counsel was ineffective for failing to renew the request to admit the evidence once he elected a bench trial. We reject both arguments.
Decisions as to the admissibility of evidence are within the discretion of the trial court, and will not be disturbed absent abuse of that discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995); State v. Grant, 83 Wn. App. 98, 105, 920 P.2d 609 (1996). Abuse of discretion occurs when a trial court's decision is manifestly unreasonable or based upon untenable grounds or reasons. State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997); Grant, 83 Wn. App. at 105.
The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee criminal defendants the right to confront and cross-examine adverse witnesses. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Russell, 125 Wn.2d 24, 73, 882 P.2d 747 (1994). "Although this right is of constitutional magnitude, it is subject to the following limits: (1) the evidence sought to be admitted must be relevant; and (2) 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. McDaniel, 83 Wn. App. 179, 185, 920 P.2d 1218 (1996).
We must first determine whether Richter's reports of Stepan's alleged abusive conduct are relevant. Relevant evidence is that which tends "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; State v. Gallegos, 65 Wn. App. 230, 237, 828 P.2d 37 (1992). Richter contends Stepan's credibility was a central issue at trial and, therefore, evidence of her prior abusive conduct was admissible under our decision in State v. Grant, 83 Wn. App. 98, 920 P.2d 609 (1996). In Grant, the trial court allowed evidence of prior instances of the defendant's violence against the victim under ER 609. Id. at 103. Although skeptical that the evidence was admissible under that rule, we affirmed because the evidence was properly admissible under ER 404(b) to explain the victim's statements and conduct that might otherwise appear inconsistent with her testimony. Id. at 106. "The jury was entitled to evaluate her credibility with full knowledge of the dynamics of a relationship marked by domestic violence and the effect such a relationship has on the victim." Id. at 108. Richter argues the same is true in this case.
Richter's reliance on Grant is misplaced. His theory of defense was that Stepan's exposure to acid was an accident caused by her conduct in tackling him or grabbing for the bag. Richter fails to explain how evidence that he had called the police to report Stepan's abusive behavior in the past has any tendency to make this theory more or less probable. In particular, we see no way that this evidence has any bearing on Stepan's credibility. If anything, her credibility was undermined by the existence of the no-contact order prohibiting her from being at Richter's home at the time of the incident, and that evidence was properly admitted by the court. In fact, Richter used this evidence to argue in closing that Stepan "has a motive to color this case to be an intentional act, not only an accident." RP (Oct. 23, 2003) at 83. We agree with the trial court that the evidence is not relevant, and see no abuse of discretion in its exclusion.
For the same reason, we reject Richter's argument that he received ineffective assistance of counsel. Richter contends his trial counsel should have offered the evidence of the prior police calls again when he waived his right to a jury trial. This argument is based upon Richter's misunderstanding of the court's rationale for excluding the evidence. Richter insists the court precluded the evidence because it would confuse the jury. Rather, the court expressly stated, "I am satisfied it [is] not relevant." RP (Oct. 21, 2003) at 38. The court only identified the risk of jury confusion as "another reason" to exclude the evidence. Id. Because the evidence was no more relevant in a bench trial, we are not persuaded counsel's representation was deficient, and need not reach the question whether any deficiency prejudiced his defense. See State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
Richter next contends we must vacate his judgment and sentence and remand because the trial court failed to enter written findings of fact and conclusions of law. CrR 6.1(d) requires a trial court in a bench trial to enter written findings of fact and conclusions of law as to each element of the crime charged, and CrR 3.5(c) requires written findings and conclusions at the conclusion of any motion to admit a defendant's statements into evidence at trial. The findings and conclusions at issue were filed after Richter submitted his opening brief on appeal. It is evident that the findings and conclusions have not been tailored, and Richter does not argue he has been prejudiced by the late entry of findings. Accordingly, we will not reverse or remand on these grounds. See State v. Cannon, 130 Wn.2d 313, 329, 922 P.2d 1293 (1996).
We remand, however, for the trial court to correct an error in Richter's judgment and sentence. Richter was originally charged with first degree assault based upon two theories: (1) that, with intent to inflict great bodily harm, the defendant administered a noxious substance to Angela Stepan, and (2) with intent to inflict great bodily harm, did assault Angela Stepan and inflict great bodily harm on her. At trial, the State amended the information to delete the noxious substance theory. Following trial, the court found Richter guilty based on the infliction of great bodily harm element of first degree assault. However, the judgment and sentence was not corrected to reflect that Richter was found guilty solely under this theory. The State concedes that the judgment and sentence must be amended to strike the reference to RCW 9A.36.011(1)(b) (noxious substance).
Affirmed, but remanded for entry of an amended judgment and sentence.
SCHINDLER and BAKER, JJ., Concur.