Opinion
No. 31418-5-II
Filed: August 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County. Docket No: 03-1-01472-6. Judgment or order under review. Date filed: 02/12/2004. Judge signing: Hon. Jill M Johanson.
Counsel for Appellant(s), Thomas A. Ladouceur, Attorney at Law, 100 E 13th St Ste 113, Vancouver, WA 98660-3230.
Counsel for Respondent(s), A.O. Denny, Cowlitz County Prosecutors Office, 312 SW 1st Ave, Kelso, WA 98626-1739.
Cynthia Sue Campbell appeals her conviction for assault in the third degree. We affirm.
On October 18, 2003, Campbell, age 39, and Levi Cutshall, age 13, were arguing in Campbell's home. According to the State, she burned him when, with criminal negligence, she grabbed him while holding a cigarette. According to her, she burned him accidentally while holding a cigarette. The State charged her with second degree assault, and a jury convicted her of third degree assault.
Before trial, the State moved in limine to exclude `evidence, argument or instructions concerning the victim's reputation and alleged criminal activity.' Defense counsel stated that although he did not intend to offer any reputation evidence, he did want to show, by calling two neighbors, that about two months after the charged incident, Levi, acting in concert with several other youths, had harassed Campbell and on one occasion tried to break into her house with a crowbar. The State responded that the offered evidence did not show `that he would come in and lie about this or that he would be dishonest about this case;' rather, it `raise[d] a side issue' and might be used to show he was a bad person who `deserved what he got two months before.' The trial court excluded the evidence.
Clerk's Papers (CP) at 19.
Report of DVD Taped Proceedings (RP) at 10.
During trial, the State called Rosco Worley and Katie Cutshall, two youths with whom Levi had allegedly harassed Campbell a couple of months after the charged incident. In an offer of proof, defense counsel asked to cross-examine Rosco and Katie on their participation in those events `to establish Levi's bias and motive' and `to impeach [Rosco and Katie] directly' by establishing `their own' bias and motive. When the trial court attempted to clarify by asking whether Katie had seen one of the incidents, defense counsel responded that another, unidentified witness would testify that the other witness `saw [Katie] yelling and swearing at [Campbell's] house.' The State objected, and the trial court sustained.
RP at 99.
RP at 100.
The only issue on appeal is whether the trial court had discretion to exclude these offers. ER 404(a) provides that evidence of a person's character, including his other bad acts, is generally not admissible to show that the person acted in conformity therewith on a particular occasion. By its terms, however, ER 404(a) is subject to three exceptions. ER 404(a)(1) allows, subject to several significant restrictions not pertinent here, character evidence offered to prove how the accused acted at the time of the charged event. ER 404(a)(2) allows, subject to several significant restrictions not pertinent here, character evidence offered to show how the victim acted at the time of the charged event. ER 404(a)(3) allows, subject to the several significant restrictions set forth in ER 608 and 609, character evidence offered to show how a witness is acting (i.e., whether he is lying or truth-telling) at the time of trial. ER 608(a) governs when character evidence relevant to a witness' veracity at trial is in the form of reputation. ER 608(b) governs when character evidence relevant to a witness' veracity at trial involves specific instances of conduct that have not been reduced to conviction. ER 609 governs when character evidence relevant to a witness' veracity at trial involves incidents of specific conduct that have been reduced to conviction.
The character evidence in issue here was offered to prove Levi's, Rosco's, and Katie's credibility at trial. It was not in the form of reputation, nor did it involve convictions. Accordingly, its admissibility was governed by ER 608(b), which provides:
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
Much of the character evidence offered here was `extrinsic,' including (a) evidence from the two neighbors offered to prove Levi's biases and motives, (b) evidence from Rosco and Katie offered to prove Levi's biases and motives, and (c) evidence from the unidentified witness offered to prove Katie's biases and motives. This evidence was expressly barred by ER 608(b), and the trial court did not err by excluding it.
The record does not clearly show that some of the character evidence offered here was not `extrinsic,' for the offers of proof confusingly intertwined evidence that was extrinsic with evidence that was not. Even assuming, however, that Rosco, Katie, Levi, or some other witness would have acknowledged his or her own misconduct on cross, the resulting evidence would have had probative value to the extent it showed that the witness was biased or otherwise motivated to lie, but it would also have generated unfair prejudice to the extent it showed that the witness was a bad person who had deserved whatever had happened. In conjunction with ER 403, ER 608(b) vested the trial court with broad discretion to balance these competing considerations, and we cannot say that it abused that discretion by ruling as it did.
Affirmed.
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.
HOUGHTON, J. and ARMSTRONG, J., concur.