Opinion
No. 56827-2-I.
August 20, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-00099-2, Laura C. Inveen, J., entered August 30, 2005.
Affirmed in part and reversed in part by unpublished per curiam opinion.
Chantelle Lucas worked as a medical assistant at the Pioneer Square clinic in Seattle. The clinic provides free medical care to the homeless. It was there, in October 2004, that she met Gorricho Desue when he came to the clinic to make an appointment. Desue, who had a history of drug addiction, was living at the Riverton Rehabilitation Center in Tukwila. After Desue visited the clinic several times, he started giving Lucas notes and letters describing himself and his life. Lucas found Desue to be a friendly, interesting man, and the two began to speak regularly on the telephone, often several times a day. Lucas told Desue that she is gay. Desue wanted no limits on their new relationship, and began sending her sexually explicit letters, telling her that her lifestyle was sinful, and that she needed a man. When Lucas insisted on a platonic friendship, Desue would appear to accept that she was not interested in a sexual relationship, but would then send her more sexually charged letters.
The relationship continued for several months, but eventually Lucas grew alarmed at Desue's behavior and obtained a temporary protection order against him. The order was never served on Desue.
On January 3, 2005, Lucas flagged down a police officer. Lucas told the officer that Desue had assaulted her, held her against her will, and raped her. She said that as she was locking her door on her way to work, Desue came up behind her and pushed her back into her apartment. He began punching and slapping her, then choked her and raped her.
Lucas was transported to Swedish Hospital, and then to Harborview's sexual assault center where she underwent a rape examination. DNA and sperm cells matching Desue's were found on swabs taken from Lucas's vagina.
The next day, Lucas admitted that the account she had given the police and the hospital was not entirely accurate. She testified that her story of Desue overpowering her at her door was not true, and that she had made it up because she was ashamed to be associating with someone she met at the clinic. She said she was embarrassed that she had let him into her apartment even though she had a restraining order against him.
Nevertheless, she stood by the rest of her account. As she described it, Desue had come to her apartment to retrieve a duffel bag he had left there a month previously. Once there, he said he was feeling sick and asked to spend the night. Lucas allowed him to stay in her second bedroom. As she described it, Desue attacked her and choked her until she began foaming at the mouth. She said Desue called her an "evil bitch" and told her "I don't know why you make me do this." She said he then raped her.
Desue had a dramatically different account of their relationship. According to Desue, their relationship became sexual very early on. Desue insisted that far from making Lucas uncomfortable, his sexually explicit letters excited her. He said that he was surprised that a gay woman would have such an "unusual compulsion for sex," and that every time he went to her apartment, they would have sex "many, many times."
He said that when he went to pick up his duffel bag, Lucas told him she was pregnant, and that they had quarreled over the subject of abortion. Despite their quarrel, they again had consensual sex. In his account, they argued over baby names, and then Lucas demanded that he leave. He refused, he said, because it was so late at night, and he had a heavy duffel bag to carry. He eventually locked himself in the bathroom, only coming out when he heard Lucas leave in the morning. He then went to a corner grocery for cigarettes and candy, and was arrested on his way back to the apartment.
Desue was convicted of second degree assault, and acquitted of felony harassment, second degree rape, and unlawful imprisonment charges. The jury did not find he committed the second degree assault with sexual motivation. Desue appeals the trial court's denial of his motion for a mistrial due to statements by the prosecutor and two State witnesses in violation of a motion in limine, the admission of Lucas's medical records, and the trial court's order to pay restitution for a rape kit used during Lucas's medical examination after the assault. We affirm in part and reverse in part.
Standard of Review
A denial of a motion for mistrial is reviewed for abuse of discretion. Discretion is abused when the judge's decision is manifestly unreasonable or based upon untenable grounds. A trial court's denial of a motion for mistrial will only be overturned when there is a "substantial likelihood" that the error prompting the mistrial affected the jury's verdict.
State v. Rodriquez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002).
State v. Allen, 159 Wn.2d 1, 10, 147 P.3d 581 (2006).
Rodriquez, 146 Wn.2d at 269-270.
The admission of evidence likewise lies largely within the sound discretion of the trial court. The admission of evidence will be upheld on appeal if it is admissible for any proper purpose, even if the basis relied upon by the trial court was improper.
State v. Brown, 132 Wn.2d 529, 578, 940 P.2d 546 (1997).
State v. Mutchler, 53 Wn. App. 898, 901, 771 P.2d 1168 (1989).
A trial court's decision with regard to restitution is reviewed for abuse of discretion. A trial court abuses its discretion when its decision rests on an untenable basis.
State v. King, 113 Wn. App. 243, 299, 54 P.3d 1218 (2002).
King, 113 Wn. App. at 299.
Discussion
The Protection Order
Prior to the trial, Desue moved to exclude reference to the protection order. The State argued that the fact that Lucas sought a protection order was relevant and admissible to show her state of mind leading up to the alleged assault and rape, but agreed that evidence that the order was actually issued could be excluded. The court allowed reference to the fact that Lucas petitioned for a protection order, but reserved ruling on whether to allow the actual substance of the order.
During opening statement, the prosecutor stated:
The very next day, December 15th, she goes to get a restraining order, a protective order, against him. She applies and gets a temporary protective order against him. And then she doesn't see him for quite some time and the order doesn't get served, is not served on him.
Desue's counsel did not object.
Desue's counsel herself made explicit mention of the order during her opening statement.
And that was the December 14th incident that [the prosecutor] has characterized as the time where she found this fourth step and got all upset and then the next day went and got a restraining order.
Defense counsel later noted that Lucas had gone to get a protection order, and described the information Lucas included in the affidavit for the order.
After opening remarks, the court noted that it had heard the State refer to the granting of the protection order. The State responded that there had been an off-the-record agreement between the parties and that it understood that defense was withdrawing its objection. When the court inquired of defense counsel if she was withdrawing her objection, she said she thought the issue of whether the order was granted was still prejudicial. The court then held that evidence the order was actually issued would remain inadmissible. There followed a discussion of a limiting instruction in which the jury would be instructed to consider evidence of Desue's prior bad acts only for the purpose of determining Lucas's state of mind. Such an instruction was later given to the jury.
During her direct testimony, Lucas mentioned that she "went downtown and got a restraining order." The prosecutor responded, "Did you enter an application that day?" Lucas then referred to a State's exhibit as "the first restraining order I filed." The prosecutor attempted to correct her by saying, "You're referring to that as a restraining order. That's actually a petition for . . . for a restraining order, right?" He then asked Lucas on what date she had filed the petition. Defense did not object.
Later, the prosecutor asked Lucas about the next contact she had had with Desue. She responded that Desue had called about the bag he dropped off "after I got the restraining order." Again, no objection was raised.
In later testimony, a nurse from Harborview testified that Lucas told her that she had a restraining order against her attacker. At the next recess, Desue moved for a mistrial based on the nurse's testimony. The court said that while the comment was a violation of the order, any prejudice was minimal, and offered to cure it with a limiting instruction. Defense counsel said, "I think we will pass on that, your Honor."
When Lucas returned to the stand, she explained that she had initially lied to the police and medical personnel because she "already had a restraining order against him, and I was embarrassed." Defense renewed its request for a mistrial at the next recess. Again, the court denied the request. The court noted, "It is somewhat prejudicial, but the jury has already been told, and everyone agreed, that the jury would be told, that there was a petition for a restraining order. There hasn't been any detail about the circumstances for a restraining order, but it was mentioned."
When the State offered to craft an instruction for the jury indicating that there was no evidence introduced in court that a restraining order was actually issued, defense counsel declined, saying that she would be asking for a general limiting instruction about bad acts, and that "[i]t probably falls within that, rather than highlight the importance of this particular evidence." That limiting instruction was later given to the jury.
Desue himself also testified twice that Lucas obtained a protection order.
Trial courts should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly. Only errors affecting the outcome of the trial will be deemed prejudicial. In determining the effect of an irregularity, the court will consider, among other things, (1) its seriousness; (2) whether it involved cumulative evidence; and (3) whether the irregularity could be cured by an instruction.
Rodriguez, 146 Wn.2d at 269-70.
State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989).
Hopson, 113 Wn.2d at 284.
We hold that the outcome of Desue's trial was not affected by the trial court's denial of his motion for a mistrial.
The trial court ruled that evidence Lucas petitioned for a protection order was admissible. The defendant agreed that the information contained in the petition itself was also admissible. The only evidence that was ruled inadmissible was the fact that the order was actually issued. There is no basis to conclude that testimony referencing this narrow distinction prejudiced Desue in any way, certainly not to such an extent that nothing short of a mistrial was sufficient to cure it.
The defense itself made reference to the fact that the order was issued in its opening statement. The jury convicted Desue only of second degree assault. It did not find he committed the second degree assault with sexual motivation, and he was acquitted of the felony harassment, second degree rape, and unlawful imprisonment charges. The court issued a limiting instruction regarding the defendant's prior bad acts, in accordance with defense wishes. Given these facts, we hold that Desue had a fair trial, and the trial court did not abuse its discretion in denying his motion for a mistrial.
Medical Records
Desue argues that the trial court erred in admitting Lucas's sexual assault examination report from Harborview under the business record exemption.
After the assault, Lucas was originally treated by paramedics at a police precinct house near her apartment. She was then transported to Swedish Hospital. She was subsequently transported to Harborview for a rape test.
Several witnesses, including a registered nurse from the sexual assault center and a medical social worker from Harborview, testified at trial about Lucas's medical condition and statements she made to hospital personnel. Both the nurse and the social worker testified to the diagnostic importance of obtaining a patient's account of what happened. Both women referred to Lucas's medical records while testifying. The chief medical examiner of King County also testified, and referred to the same medical records.
Desue argued below that the records should not be admitted because they needed interpretation by experts. When the court asked if there was any specific portion of the records that defense found particularly objectionable, Desue objected to the terminology and medical jargon in the report, arguing that it might not be comprehensible to the jury. The court found that three different witnesses had testified about the records, that there had been sufficient foundation laid to insure that the records complied with the business records exception, and admitted them. Desue did not argue that the records constituted hearsay, or contest their admission as business records.
RCW 5.45.020 provides that a "record of an act, condition or event, shall in so far as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission."
Counsel did not specify any objectionable portion of the records to afford the trial court an opportunity to rule on the question at the time the record was admitted. Therefore, we will not consider the objection on appeal.
Allen v. Fish, 64 Wn.2d 665, 671, 393 P.2d 621 (1964).
RAP 2.5(a). The appellate court may refuse to review any claim of error which was not raised in the trial court.
Restitution
Desue contends that, because the jury acquitted Desue of rape and rejected the allegation of sexual motivation, the court erred in ordering $348.52 in restitution for a rape kit at Harborview.
RCW 9.94A.753 provides that restitution "shall be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property . . . unless extraordinary circumstances exist which make restitution inappropriate." A restitution order must be based on the existence of a causal relationship between the crime charged and proven and the victim's damages. Restitution is not limited by the definition of the crime for which a defendant is convicted. The restitution statute is to be interpreted broadly to carry out the legislature's intention. Our legislature clearly intended to make restitution widely available.
State v. Woods, 90 Wn. App. 904, 907, 953 P.2d 834 (1998).
State v. Selland, 54 Wn. App. 122, 124, 772 P.2d 534 (1989).
State v. Hennings, 129 Wn.2d 512, 519, 919 P.2d 580 (1996).
State v. Hiett, 154 Wn.2d 560, 564, 115 P.3d 274 (2005).
Nevertheless, a restitution order must be based on the existence of a causal relationship between the crime charged and proven. Thus, the award of restitution requires a causal connection between a conviction and the damages for which restitution is sought. Because Desue was not convicted of rape, and the jury did not find sexual motivation in the second degree assault, there is no causal connection, and Desue cannot be held responsible for restitution for the evidentiary rape kit.
State v. Dauenhauer, 103 Wn. App. 373, 378, 12 P.3d 661 (2000) (emphasis added).
AFFIRMED IN PART/REVERSED IN PART.