Opinion
No. 22279-9-III
Filed: September 2, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 03-1-01331-6. Judgment or order under review. Date filed: 08/04/2003. Judge signing: Hon. Tari S. Eitzen.
Counsel for Appellant(s), David N. Gasch, Attorney at Law, PO Box 30339, Spokane, WA 99223-3005.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Andrew J. III Metts, Spokane County Pros Offc, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Ronald Edwards was convicted of stalking and harassing his estranged wife, Cindy Edwards. On appeal, he contends the trial court erred in admitting Ms. Edwards' testimony regarding earlier incidents of drunkenness and threats. He raises several issues pro se, including violation of his speedy trial rights, refusal of the trial court to grant continuances so he could seek additional exculpatory evidence, and ineffective assistance of counsel. We find no error and affirm.
Facts
Ms. Edwards filed for divorce in November 2002 after approximately 27 years of marriage. When she filed, she also got a restraining order against Mr. Edwards that prevented him from coming within two blocks of her home or workplace in Spokane. Mr. Edwards violated restraining orders at least eight times between November 2002 and March 2003. He was arrested three times for these violations.
On April 29, 2003, Mr. Edwards was charged by information with one count of stalking, RCW 9A.46.110(5)(b), and one count of felony harassment, RCW 9A.46.020(2)(b). At his jury trial, the State presented the testimony of several police officers who had responded to reports of Mr. Edwards' violations of the protection orders. They testified that Ms. Edwards appeared very frightened on those occasions.
During Ms. Edwards' testimony she referred to her husband's drinking problems, prior domestic violence, and the fact that he blamed other people for his penchant to get in trouble. Defense counsel frequently objected to the introduction of these prior bad acts, citing ER 404(b). The trial court overruled each objection, stating that this testimony was not offered to show character, but to show a continuing course of conduct or knowledge, plan, or absence of mistake. Ms. Edwards also described the incidents that supported the charges, including times when Mr. Edwards called and threatened to kill her or her male friend and when he followed her car or parked near her home and prowled around her yard.
Mr. Edwards took the stand as the only defense witness. He testified that his signature was forged on the protection orders, he did not remember appearing before the court commissioner, he never called to harass or threaten Ms. Edwards or her male friend, he never followed Ms. Edwards' car, and he only went to her house when she called and asked him to come over. The jury returned guilty verdicts on each charge and he received a standard range sentence of 17 months.
Prior Bad Acts
On appeal, Mr. Edwards contends he was prejudiced by admission of Ms. Edwards' testimony regarding prior uncharged acts and wrongful conduct. Defense counsel raised objections when Ms. Edwards stated that Mr. Edwards blamed everyone else for his tendency to get in trouble; that she had been `through a lot of domestic violence with him,' Report of Proceedings (RP) at 242; that he had a bad temper when he was drinking; that he had failed an ordered urinalysis test in August 2002, while he was on home monitoring; and that he had subjected her to mental and sexual abuse.
Generally evidence of other crimes, wrongs, or acts is inadmissible to show that the defendant acted in conformity with a bad character. ER 404(b); State v. Ragin, 94 Wn. App. 407, 410-11, 972 P.2d 519 (1999). `It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.' ER 404(b). When the State seeks admission of other wrongs, the trial court must
(1) find by a preponderance of the evidence that the uncharged acts probably occurred before admitting the evidence, (2) identify the purpose for which the evidence will be admitted, (3) find the evidence materially relevant to that purpose, and (4) balance the probative value of the evidence against any unfair prejudicial effect the evidence may have upon the fact-finder.
State v. Kilgore, 147 Wn.2d 288, 292, 53 P.3d 974 (2002); see also State v. Pirtle, 127 Wn.2d 628, 649, 904 P.2d 245 (1995). If evidence is admitted for purposes other than those listed in ER 404(b), the `trial court must identify that purpose and determine whether the evidence is relevant and necessary to prove an essential ingredient of the crime charged.' State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
Mr. Edwards limits his challenge to the trial court's failure to identify a purpose for the evidence, to discuss its relevance to the charges, or to balance on the record the probative value against the prejudicial effect. Admittedly, the trial court provides little assistance on the record to help in understanding its rulings. The State argued that the prior acts discussed by Ms. Edwards were crucial in establishing the reasonable basis for her fearfulness — an element of both stalking and felony harassment — and the res gestae. RCW 9A.46.020(1)(b); RCW 9A.46.110(1)(b). But the trial court somewhat ambiguously ruled that Ms. Edwards' testimony was not offered to show character, but to show a `continuing course of conduct or knowledge, plan, absence of mistake, that type of thing.' RP at 247.
We analyze a trial court's decision to admit evidence of a defendant's prior acts for abuse of discretion. Ragin, 94 Wn. App. at 411. A trial court's mere recitation of the allowable purposes for admission under ER 404(b) is insufficient to support admission of specific prior acts. See State v. Carleton, 82 Wn. App. 680, 685-86, 919 P.2d 128 (1996). The record must reflect that the court clearly identified a purpose, tied that purpose to an essential element of the crime, and conducted the required balancing of prejudice and relevance. Powell, 126 Wn.2d at 258; Carleton, 82 Wn. App. at 685-86. Failure to conduct this inquiry on the record does not, however, necessarily require reversal. Carleton, 82 Wn. App. at 686. If the record reflects that the trial court gave thoughtful consideration to the prejudicial impact of the evidence, this court may affirm on any basis supported by the record. State v. Norlin, 134 Wn.2d 570, 582, 951 P.2d 1131 (1998); Carleton, 82 Wn. App. at 686.
The State argued that Ms. Edwards' testimony was relevant and necessary to support the reasonable fear element of the crimes of stalking and harassment. Both crimes require proof that the victim reasonably feared injury. RCW 9A.46.020(1) (harassment); RCW 9A.46.110(1) (stalking). Ms. Edwards testified she was afraid that her husband would hurt or kill her or her male friend. And police officers testified she was visibly frightened when they responded to her calls. However, the State had to establish the basis for that fear in order to show that it was reasonable. Evidence that Mr. Edwards drank frequently and was inclined to inflict mental and physical violence on his wife on those occasions was relevant and necessary to prove the reasonableness of her fear. Consequently, the record supports admission on the basis of relevance. See Powell, 126 Wn.2d at 259 (the appellate court may consider the bases mentioned by the trial court as well as any other bases that support the trial court's admission of evidence).
Nothing in the record indicates the trial court balanced the relevance of this evidence against its prejudicial impact. However, the failure to weigh prejudice under ER 404(b) is harmless error if the record is sufficient `to determine that the trial court, if it had considered the relative weight of probative value and prejudice, would still have admitted the evidence.' Carleton, 82 Wn. App. at 686. Considering the importance of Ms. Edwards' testimony to establish the reasonableness of her fear — an element that could only be established by the history of violence in her marriage — it is safe to assume that the trial court would have found that relevance outweighed the potential of unfair prejudice. Therefore the error in failing to balance on the record was harmless under these circumstances. On balance, the trial court did not abuse its discretion in admitting Ms. Edwards' testimony regarding her husband's prior conduct toward her.
Mr. Edwards alternatively argues that the trial court should have given the jury an instruction limiting the use of the prior bad acts testimony to the announced purpose. However, his failure to request a limiting instruction waived his right to the instruction and his right to complain about the omission on appeal. State v. Newbern, 95 Wn. App. 277, 295-96, 975 P.2d 1041 (1999); State v. Ramirez, 62 Wn. App. 301, 305-06, 814 P.2d 227 (1991).
Pro Se Issues
Mr. Edwards raises three issues pro se: (1) violation of his speedy trial rights; (2) the trial court's error in denying continuances to find telephone records and alibi witnesses; and (3) ineffective assistance of counsel.
I. Speedy trial. A defendant released from jail must be tried within 90 days of the date of arraignment or 104 days of the date of the information. Former CrR 3.3(c)(1) (2001). If not released from jail, the defendant must be tried within 60 days of arraignment or 74 days of the date of the information. Former CrR 3.3(c)(1). Mr. Edwards was charged by information on April 29, 2003 and was brought to trial on June 30, 2003, within any speedy trial period of former CrR 3.3(c)(1). The record does not indicate when he was arraigned, whether he was jailed during this period, or whether he objected to the trial date. Consequently, the record does not support his assertion that he was denied his speedy trial rights.
II. Denial of continuances. On the first day of trial, defense counsel requested a continuance so he could attempt to obtain telephone records presumably relevant to the allegations that Mr. Edwards violated the protection orders by calling Ms. Edwards. Only the week before, Mr. Edwards had objected to a continuance for the same purpose. Apparently he had changed his mind by the start of trial. The trial court ruled that because nothing had changed since the time Mr. Edwards had objected to the continuance, the continuance would not be allowed now. Mr. Edwards assigns error to this ruling and further contends he was denied a continuance he needed to find witnesses in Arizona.
A trial court's decision to deny a continuance is reviewed for abuse of discretion and will be disturbed only upon a showing that the accused was prejudiced or the trial result would have been different if the continuance had not been denied. State v. Eller, 84 Wn.2d 90, 95, 524 P.2d 242 (1974). The trial court must consider the totality of the circumstances, including diligence, due process, and the need for orderly procedure. State v. Early, 70 Wn. App. 452, 458, 853 P.2d 964 (1993). Here, the trial court found that Mr. Edwards earlier refused a continuance on the same basis that he requested one on the day of trial. Mr. Edwards presented no argument at the time of trial or on appeal to support his change of heart. Under these circumstances, recognizing the need to proceed to trial in an orderly fashion, the trial court did not abuse its discretion in denying the motion for a continuance. As for Mr. Edwards' contention that a continuance was necessary to find alibi witnesses, the record does not indicate he ever sought such a continuance or raised this issue at trial. Consequently, this court has nothing on this issue to review.
III. Ineffective assistance of counsel. Mr. Edwards merely alleges ineffective assistance of counsel without reference to any acts by his trial attorney. He may be referring to a motion to dismiss trial counsel that he made after his CrR 3.5 hearing. At that time he complained that his attorney had rejected certain evidence. The trial court denied the motion, stating that defense counsel was a very accomplished trial attorney.
We presume trial counsel is effective. State v. Mannering, 150 Wn.2d 277, 286, 75 P.3d 961 (2003). The defendant must show that counsel's performance was deficient and not a matter of trial strategy, and must further show that he or she was prejudiced. Id. at 285. Mr. Edwards shows neither deficient performance nor prejudice, and the record provides no evidence of ineffective assistance of counsel.
Affirmed.
A majority of the panel has determined that 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.
KURTZ, J. and BROWN, J., concur.