Opinion
No. 36720-3-II.
February 12, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-1-04441-1, Bryan E. Chushcoff, J., entered August 24, 2007.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, A.C.J., and Armstrong, J.
Gregory L. Bonds was charged with second degree assault (count I), felony harassment (count II), and first degree unlawful possession of a firearm (count III) arising out of an argument between Bonds and his wife, Antoinette Weekly-Bonds, that occurred on September 19, 2006, at their home in Tacoma, Washington. The State alleged that Bonds either assaulted Antoinette with a firearm or intentionally assaulted her and recklessly inflicted substantial bodily harm and that any sentence imposed on counts I and II should be enhanced for the use of a firearm. Following a trial that lasted about 12 days, the jury found Bonds guilty of second degree assault (count I) and felony harassment (count II). It did not find that Bonds was armed during the commission of these crimes and it was unable to reach a verdict on the unlawful possession of a firearm charge (count III). The trial court imposed concurrent exceptional sentences of 96 months on the second degree assault conviction and 80 months on his felony harassment conviction to be followed by 18 to 36 months community custody. Bonds appeals his assault and harassment convictions, claiming that the trial court improperly (1) allowed the State to impeach Bonds's testimony with convictions for crimes that were more than 10 years old and (2) denied the defense request that the court find the assault and harassment charges were the same criminal conduct and sentence him accordingly.
Antoinette Weekly-Bonds's first name shall be used for clarity.
Because Bonds's prior convictions were for crimes involving dishonestly — robbery, burglary, and theft — the trial court did not abuse its discretion in admitting them for impeachment purposes and instructing the jury that it must limit consideration of his prior convictions to determining the credibility of Bonds's testimony. In addition, because assault and harassment have distinct intents and the threat to burn Antoinette and her children to death in the house occurred after the assault was complete, the crimes were not the same criminal conduct. Bonds's challenges lack merit and we affirm.
FACTS
It is undisputed that on September 19, 2006, Bonds hit his wife, Antoinette, in the face at their home in Tacoma, Washington. Whether the contact was done accidentally as Bonds claimed or was a brutal assault followed by strangulation and threats to kill her and her children by burning down her home that caused Antoinette to fear for her life and the lives of her children was the issue for the jury at trial.
At 3:26 am on September 19, 2006, Tacoma's Law Enforcement Support Agency received a 911 call from Antoinette; when the call was cut off and the call-back met with no answer, police were dispatched. Officer Ryan Hovey of the Tacoma Police Department responded to the call and was greeted by a hysterical Antoinette, who told him that Bonds, who had just left the residence, had punched her, choked her, put a gun in her mouth, and was going to kill her. Antoinette told the officers that she and Bonds had been dating for seven years and that they were not married. In fact, Antoinette had married Bonds on May 22, 1998.
Antoinette testified that she came home from work to find her daughter, Veatrice Jordan, sitting at the kitchen table with three people who were waiting for Bonds. Antoinette went to her bedroom and had been watching television and drinking beer for a couple of hours when Bonds called and she told him there were three people waiting for him at the house. She described Bonds as sounding tired and stated that he had been high for four to five days preceding the incident. Antoinette testified that Bonds becomes agitated quickly and easily when high. About 10 minutes after the call, Bonds knocked on Antoinette's front door. As Bonds entered the house, he struck her in the face and sent her falling back onto a chair. Bonds punched Antoinette in the face and, when she fell to the ground, he choked her until she was unable to breathe and she feared that she would die.
Antoinette testified that Bonds then put a gun in her mouth and said, "Bitch, I will kill you, and I'll burn down this mother fucking house with you and your kids in it." 4 Report of Proceedings (RP) at 207. Antoinette got away, ran to the laundry room, and called 911. Bonds pulled the phone from the wall and fled in Antoinette's sport utility vehicle before the police arrived.
Dr. Richard McMonigal, an emergency room physician at Auburn Regional Medical Center, testified that nearly half of all strangulation victims studied had no visible signs of the trauma and that only about 15 percent had bruising that could be photographed. He testified that the symptoms Antoinette described — inability to breathe, nearly passing out, swollen neck, and hoarse voice — were consistent with strangulation.
Jordan testified that, on September 18, several people came by her mother's home to see Bonds but that he was not there. She testified that three people, two men and a woman, sat and drank at the kitchen table while they waited for Bonds to arrive. Antoinette became upset when she got home from work, between 11:45 pm and 12:30 am, and found the strangers drinking in her house and being loud. Jordan testified that she stayed downstairs with the three people while her mother went upstairs. Bonds came home at about 2:30 am, and he and Antoinette argued for a few seconds at the front door about the three people who were waiting for Bonds. Jordan testified that when Bonds closed the door, he struck Antoinette in the face. Jordan and the three other people ran out the door when they saw Bonds punch Antoinette in the face. When Jordan returned home several hours later, she noticed that her mother had a fat lip and a black eye.
Bonds's father, ex-wife, and two of his sisters, Debra Ann McDaniels and Diane Massey, offered testimony outside the presence of the jury that Antoinette was a liar who was jealous of Bonds's relationship with his former wife and had a reputation in the community for exaggeration and lying. Following voir dire, the trial court granted the State's motion in limine to exclude the testimony finding that the evidence offered was limited to the personal opinions of family members and did not qualify for admission as reputation evidence under ER 405 and 803(a)(21).
Bonds testified that he had not called Antoinette that night and had spent the evening at his former wife's home but left for home around 2:00 am. He testified that, when he got home, the house was dark and Antoinette was the only one there. Antoinette was drunk and accused Bonds of looking at other women. Bonds decided to leave and, as he was going downstairs, Antoinette was hitting him in the back of the head and kicking him; he reacted to her assaults and hit her in the face. Bonds testified that, other than accidentally hitting her when he flicked his hand, he did not choke, kick, or hit Antoinette. Antoinette called 911 and, because the police were coming, Bonds left the house with a stress-induced bloody nose.
On cross-examination, the State asked Bonds about his prior convictions for crimes of dishonesty. He admitted to having been convicted of first degree theft in 1982, attempted burglary in 1985, and second degree robbery in 1986.
The jury found Bonds guilty of second degree assault, count I alternative b, and felony harassment, count II, but it was not able to reach a verdict on count III, unlawful possession of a firearm or the firearm sentence enhancements. The trial court calculated Bonds's offender score as 15 on count I and 14 on count II and sentenced Bonds to an exceptional sentence of 96 months on count I and a standard range sentence of 60 months on count II to be served concurrently and concurrent with the 15-month sentence imposed on an unrelated drug case. Bonds appeals.
DISCUSSION
Admission of Prior Convictions Under ER 609
Bonds first contends that the trial court erred by allowing the State to impeach him with three prior convictions that were more than 10 years old and not probative of his credibility as a witness. We disagree.
Initially, we note that for purposes of the unlawful possession of a firearm charge, Bonds stipulated that he had a prior felony conviction that prohibited his lawfully owning or possessing a firearm. Thus, although it did not know the nature of Bonds's prior criminal convictions, the jury was already aware that Bonds was a convicted felon. To aid the jury in determining the credibility of Bonds's account of the events that evening, the State sought to admit evidence of three of Bonds's numerous (more than 12) prior felony convictions: a 1982 first degree theft, a 1985 attempted second degree burglary, and a 1986 second degree robbery. ER 609 limits evidence of prior convictions for purposes of determining witness credibility and provides in relevant part as follows:
(a) General Rule. For the purpose of attacking the credibility of a witness in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
ER 609(a)-(b) (emphasis added).
Bonds contends that the trial court should not have admitted evidence of these convictions because they were more than 10 years old. But ER 609(b) does not categorically exclude such convictions. Instead, it provides that, if a period of more than 10 years has elapsed since the date of the defendant's release from confinement based on that conviction, they may be admitted if the trial court finds that the probative value of the convictions substantially outweighs their prejudicial effect. Here, the trial court balanced the probative value of the evidence against its prejudicial effect and the jury's need to determine the credibility of the witnesses before permitting the admission of evidence of the convictions for the limited purpose of determining Bonds's credibility.
Bonds argues that the trial court admitted Bonds's old theft, robbery, and burglary convictions because his numerous, more recent drug convictions are inadmissible. State v. Hardy, 133 Wn.2d 701, 946 P.2d 1175 (1997) (prior drug convictions have little to do with a defendant's credibility as a witness). But this argument misstates the trial court's reasoning. In balancing the probative value of Bonds's prior convictions for crimes involving dishonesty, the trial court focused on Bonds's more recent criminal history only to determine whether these convictions for crimes involving dishonesty, which were committed by Bonds when he was a young man, were too old to be indicative of Bonds's credibility as a witness as a mature adult.
State v. Brown, 113 Wn.2d 520, 550, 782 P.2d 1013, 787 P.2d 906 (1989) (theft, robbery, and related crimes are per se admissible as crimes involving dishonesty).
Well, I think that I actually misspoke the other day when I said there's no time limit on crimes of dishonesty. That is not literally true. What there is with respect to that — and I don't want to articulate wrongly. It's just that there is no discretion with respect to crimes of dishonesty if they are less than ten years. Case law establishes that the Court has to let them in whether the Court thinks that they are probative or not because the rule, essentially, creates an ipso facto admission because they are considered so probative on the issue of credibility.
Now, there is a reasonably strong presumption, however, against, convictions more than ten years old for the reason that if someone has not been dishonest, if you will, [for] more than ten years, there is kind of the presumption of, well, it goes to credibility, that kind of goes out the window because it may well be that that person has reformed their behavior. Why punish them if it doesn't truly indicate something about their ability for truthfulness or honesty?
Now, having said all of that, I'm certainly sympathetic with the fact that, nevertheless, although those things occurred in the 80s and the 90s and the early part of this decade, there have been a number of convictions for Mr. Bonds for lots of other things. It would suggest his ability not to conform with the law to some extent.
We have in this case, to some extent, a close case in the sense that it is — a jury has to choose between two versions of events, one presented by [Antoinette] from the State and the other by Mr. Bonds, the defendant, for the defense. Certainly, credibility is critical in every case. It is particularly critical here. While I have some sympathy for the idea that, at some point, it no longer represents the character of someone, with all of the other convictions that have occurred here and problems with the law that Mr. Bonds has had and given a closeness of the matter, it seems to me that it is important to credibility, and that a jury can weigh its age in the context of all of this themselves.
I will permit all of those convictions[, second degree robbery, attempted second degree burglary, and first degree theft].
7 RP at 653-655.
Given the overwhelming evidence that Bonds had continued to live a life of crime, we agree with the trial court's finding that Bonds's prior convictions for crimes involving dishonesty continued to be probative evidence for the jury to consider in determining Bonds's credibility. Moreover, the trial court had heard an offer of proof from Bonds's family members regarding Antoinette's reputation for veracity in the community. It excluded this evidence only after finding that they had no knowledge of Antoinette's reputation among non-Bonds family members. State v. Gregory, 158 Wn.2d 759, 805, 147 P.3d 1201 (2006) (family members are likely neither neutral nor sufficiently generalized to constitute a community for the purposes of reputation evidence because "the inherent nature of familial relationships often precludes family members from providing an unbiased and reliable evaluation of one another"). Clearly, Bonds's and Antoinette's credibility were the central issues in the jury's deliberations. In light of Bonds's stipulation to the fact of prior convictions on the unlawful possession of a firearm charge, evidence that Bonds had been convicted of three felonies for crimes involving dishonesty was probative of his credibility and not unduly prejudicial.
Same Criminal Conduct
Next, Bonds contends that the trial court erred in failing to treat his assault and harassment convictions as the same criminal conduct and sentencing him accordingly. We disagree.
Bonds argues that, although his counsel objected, the trial court improperly tallied his offender score and included both of his current assault and harassment convictions because both offenses constituted the same criminal conduct. It is unclear from Bonds's brief whether such a miscalculation, assuming it occurred, had any effect on Bonds's sentence. Bonds had an offender score of 15 on his second degree assault conviction and an offender score of 14 on his felony harassment conviction. Even if the trial court had treated Bonds's two convictions as the same criminal conduct, his high offender score — in excess of nine — would still result in the same standard range and an inability to impose punishment for one offense. Thus, an exceptional sentence of 96 months on count I was justified.
When a defendant is sentenced for two or more current offenses, the trial court generally is required to add the current offense to the defendant's offender score. RCW 9.94A.589(1)(a). But current offenses are not added to an offender score if the trial court determines that the two offenses constitute the "same criminal conduct." RCW 9.94A.589(1)(a). "Same criminal conduct" may be found only if the two crimes (1) require the same criminal intent, (2) were committed at the same time and place, and (3) involve the same victim. RCW 9.94A.589. We narrowly construe the statute to disallow most assertions of same criminal conduct. State v. Price, 103 Wn. App. 845, 855, 14 P.3d 841 (2000), review denied, 143 Wn.2d 1014 (2001). Here, the jury convicted Bonds of one count of second degree assault for intentionally assaulting and recklessly inflicting substantial bodily harm on his wife by punching and strangling her and one count of felony harassment for threatening to kill Antoinette and her children at some future time by burning them and the house.
Although Bonds's threat was to kill Antoinette at some future unspecified time, there is no doubt that the crimes were committed against the same victim and that the threat was made at the same place. But Bonds's intent differed from the assault to the felony harassment. Bonds's objective intent when he assaulted Antoinette was to physically harm her by punching her in the face and then strangling her. This intent to inflict physical injury changed, however, when he threatened to kill her and her children by burning down the house at some future time. Because Bonds's objective intents differed, the trial court properly treated them as separate offenses in calculating Bonds's offender score.
Moreover, because Bonds's offender score was more than nine and the trial court imposed an exceptional sentence 12 months above Bonds's standard range on his second degree assault conviction and a standard range sentence on his felony harassment conviction, the trial court's not the "same criminal conduct" ruling had no effect on Bonds's standard range or the resulting sentence. The trial court ruled that the sentences for the assault and felony harassment would be served concurrently and concurrent with Bonds's sentence in another cause number, No. 06-1-04230-3.
In conclusion, Bonds's claims that the trial court improperly admitted evidence of his prior convictions involving dishonesty and failed to treat the assault and felony harassment convictions as the same criminal conduct for purposes of sentencing have no merit and we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and PENOYAR, A.C.J., concur.