Opinion
No. 30318-3-II.
Filed: June 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Clark County, Docket No: 02-1-02153-1. Judgment or order under review. Date filed: 04/25/2003. Judge signing: Hon. Roger a Bennett.
Counsel for Appellant(s), James J Sowder, Attorney at Law, 1600 Daniels, PO Box 27, Vancouver, WA 98666-0027.
Counsel for Respondent(s), Thomas C. Duffy, Attorney at Law, 1013 Franklin St, PO Box 5000, Vancouver, WA 98666-5000.
Dewey K. Faifai appeals his convictions of second degree assault and gross misdemeanor violation of a domestic violence no contact order. He argues that the trial court erred when it denied his suppression motion, admitted an improperly certified copy of the no contact order, and admitted testimony about his prior convictions and adjudications for violent offenses. Finding no error, we affirm.
FACTS
On October 25, 2002, Faifai was arrested for assaulting his girlfriend, Crystal Pointer. The trial court issued a no contact order restraining Faifai from contacting Pointer.
After his release on bail a day later, Faifai arrived at Pointer's house, contacted Pointer, and was involved in a physical altercation with Michael McCoy. On October 27, Deputy Pete Muller was at Pointer's house to interview her about the assault against McCoy when he discovered Faifai in a closet. Muller arrested Faifai for McCoy's assault and for violating the order prohibiting Faifai from contacting Pointer. The State charged Faifai by amended information with the second degree assault on McCoy in violation of RCW 9A.36.021(1)(a) and a gross misdemeanor violation of the domestic violence no contact order in violation of RCW 26.50.110(1).
Suppression Hearing
Prior to trial, Faifai moved to suppress the evidence obtained following his McCoy arrest, including any statements he made to Muller on October 27. He argued that any evidence obtained after his arrest was inadmissible because Muller's discovery of him in the closet, and therefore his arrest, were the fruit of an illegal warrantless search. Muller and Faifai were the only witnesses to testify at the suppression hearing.
Faifai also moved under CrR 3.5 to suppress his statements. Faifai raises no issues related to this motion.
Muller testified that he went to Pointer's house to talk to Pointer about the assault on McCoy. He had been informed that Faifai had been seen periodically at Pointer's house, and he was aware that there was a no contact order prohibiting Faifai from contacting Pointer. Because Muller was concerned that Faifai might be at Pointer's house and was also aware of Faifai's history of attempted flight and assaultive behavior, Muller brought several deputies with him to Pointer's house.
When Muller arrived at Pointer's home, he had to knock several times and wait awhile before Pointer opened the door. When Pointer answered, Muller told her who he was and that he was there to investigate the assault against McCoy. She agreed to talk to him about the assault.
Muller also asked her twice whether Faifai was inside; she responded both times that she did not know. Finding this response odd, Muller asked if he could look inside. Muller testified that Pointer then stepped aside and let him in.
Inside, Muller observed that the light was on inside a nearby closet and that the closet door was open. After speaking to Pointer for a while, Muller observed her demeanor suggesting that Faifai might be inside the closet. Without asking for permission to search the closet, Muller looked into the closet and discovered Faifai. Muller admitted that he never asked Pointer for permission to search the closet and that he never informed her of her rights related to any search.
Muller arrested Faifai for violation of the no contact order and the assault against McCoy. Muller testified that after he advised Faifai of his Miranda rights, Faifai told him his version of the events with McCoy on October 26.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
At the suppression hearing Faifai's testimony differed significantly from Muller's. He testified that he was at Pointer's house because she had asked him there to talk about the assault against McCoy. Pointer's house had an outside security camera, and, after he had been there about an hour, they observed 'between 10 and 20 deputies' arrive at the house and cut the wires to the camera. 1 Report of Proceedings (RP) at 28. Pointer told him to hide in the closet while she got rid of the deputies.
Faifai testified that he heard Pointer answer the door and heard the deputies tell her they were there to look for Faifai. She told them that he was not there and repeatedly refused to allow them inside without a search warrant. Eventually, he heard her go outside with the deputies and close the door. He then heard the deputies enter the house and walk around. Just before Muller found him in the closet, he heard them threaten to get dogs to search the house.
Although the trial court found that Muller did not ask for permission to search Pointer's house or advise her of her rights related to the search, it denied the suppression motion because Faifai lacked standing to challenge the search. The case then proceeded to trial.
The trial took place before a different court.
Trial
At trial, Jean Kay Clark identified a copy of the October 25 no contact order. Clark, the judicial assistant for the judge who issued the no contact order, testified that she recognized Faifai as the person named in the order; that she personally prepared the order at the court's direction; that her handwriting was on the order; that the court orally informed Faifai of the order; and that, after Faifai refused to sign, she personally noted his refusal on the order. Clark also testified that although the order contained a certification statement by Robert Winsor, the Court Administrator and Clerk of the Fourth District Court of Clark County, Linda Maddy, an employee of the prosecutor's office, signed the certification rather than Winsor.
Faifai's counsel objected to admission of the no contact order, arguing that it was not properly certified. The trial court agreed that the certification was probably not adequate, but it overruled the objection and admitted the exhibit because Clark had properly authenticated the document.
Faifai testified in his defense. After the prosecutor asked him several questions about the events that lead up to the assault, the following exchange occurred:
Q And then she ran inside and then you followed her; is that correct?
A Uhm, yeah —
Q Okay. And you were mad, but you weren't violent?
A No. I — I'm not a violent man at all.
Q Okay. You're not a violent man at all?
A No, no.
2 RP at 227.
The prosecutor then attempted to rebut this statement by introducing evidence of Faifai's history of prior violent offenses, two 1998 adult convictions and three 1995 juvenile adjudications. He argued that Faifai had opened the door by asserting that he was not a violent person and that these convictions were therefore admissible under ER 404(a)(1). Faifai's counsel objected, arguing that admission of this evidence was improper because the evidence included juvenile adjudications that were several years old.
The trial court found that ER 404(a)(1) applied because Faifai had opened the door by claming a non-violent nature. The trial court also found that the age of the offenses and the fact three of them were juvenile offenses was irrelevant under ER 404(a)(1) and that the probative value of the evidence outweighed the risk of undue prejudice. Over Faifai's renewed objection, the trial court allowed the prosecutor to ask Faifai about these convictions and adjudications; Faifai acknowledged them.
The jury found Faifai guilty of the assault and of violation of the no contact order. The trial court denied Faifai's motion for a new trial or arrest of judgment and sentenced Faifai to 27 months on the assault conviction and imposed a 365-day suspended sentence on the violation of the no contact order conviction. He appeals.
DISCUSSION Denial of CrR 3.6 Motion
Faifai first contends that the trial court erred when it denied his motion to suppress for lack of standing to challenge the search. He argues that (1) he had standing because he had a legitimate expectation of privacy inside Pointer's house as an invited overnight guest; or (2) he had standing under the automatic standing doctrine. We disagree.
Before a defendant can challenge a warrantless search, he must, at a minimum, show that he has standing to contest the invasion of privacy. State v. Jacobs, 101 Wn. App. 80, 87, 2 P.3d 974 (2000) (citing State v. Jackson, 82 Wn. App. 594, 601-02, 918 P.2d 945 (1996)). Standing "depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.'' Jacobs, 101 Wn. App. at 87 (quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)).
This determination 'involves 'a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?'' Jacobs, 101 Wn. App. at 87 (quoting California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986)); see also State v. Gocken, 71 Wn. App. 267, 279, 857 P.2d 1074 (1993) (quoting State v. Foulkes, 63 Wn. App. 643, 647, 821 P.2d 77 (1991)), review denied, 123 Wn.2d 1024 (1994). But merely showing that he was legitimately on the property or a casual guest is not sufficient to establish a reasonable expectation of privacy. State v. Boot, 81 Wn. App. 546, 551, 915 P.2d 592 (1996). And this court has previously held that a defendant does not have a legitimate expectation of privacy if he is present in the residence of a person he is prohibited by court order from contacting or attempting to contact. Jacobs, 101 Wn. App. at 87 (citing Rakas, 439 U.S. at 143 n. 12 (society does not recognize as reasonable the privacy rights of a defendant whose presence at the scene of the search is 'wrongful')).
Here, a court order prohibited Faifai from contacting or attempting to contact Pointer, the owner of the residence in which he was found. And Pointer's apparent consent to contact does not vitiate the effect of the domestic violence no contact order unless the order allowed for consensual contact, which this one did not. State v. Dejarlais, 88 Wn. App. 297, 302-03, 944 P.2d 1110 (1997), aff'd, 136 Wn.2d 939 (1998). Nor did Faifai present any evidence at the CrR 3.6 hearing showing that he was an 'overnight guest' in the residence with a legitimate expectation of privacy under Minnesota v. Olson, 495 U.S. 91, 98, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). At most, the evidence at the hearing showed that Faifai may have periodically lived with Pointer but that he was there that evening at her request only to discuss the assault against McCoy. Consequently, Muller's warrantless entry into Pointer's home did not invade Faifai's legitimate expectation of privacy.
Further, automatic standing to challenge the legality of a police search of property exists only when possession is an essential element of the crime. State v. Jones, 146 Wn.2d 328, 332, 45 P.3d 1062 (2002). Possession is not an essential element of assault or violation of a no contact order. See RCW 9A.36.021(1)(a); RCW 26.50.110(1). Thus, the automatic standing doctrine does not apply here.
Because Faifai did not have a legitimate expectation of privacy on the premises and the automatic standing doctrine does not apply, the trial court properly denied Faifai's suppression motion. Admissibility of the No Contact Order.
Faifai next contends that the trial court erred in admitting the copy of the no contact order. He argues that the order was inadmissible because it was improperly certified, and appears to assert that RCW 5.44.010 and RCW 5.44.040 provide the exclusive method of authenticating public records. Again, we disagree.
RCW 5.44.010 provides:
The records and proceedings of any court of the United States, or any state or territory, shall be admissible in evidence in all cases in this state when duly certified by the attestation of the clerk, prothonotary or other officer having charge of the records of such court, with the seal of such court annexed.
RCW 5.44.040 provides:
Copies of all records and documents on record or on file in the offices of the various departments of the United States and of this state or any other state or territory of the United States, when duly certified by the respective officers having by law the custody thereof, under their respective seals where such officers have official seals, shall be admitted in evidence in the courts of this state.
We review a trial court's decision to admit or exclude evidence for abuse of discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. Powell, 126 Wn.2d at 258.
Under ER 901, testimony from a witness with knowledge 'that a matter is what it is claimed to be,' satisfies the requirement of authentication or identification as a condition precedent to admissibility. ER 901(b)(1); see also State v. Kinard, 109 Wn. App. 428, 436, 36 P.3d 573 (2001), review denied, 146 Wn.2d 1022 (2002). And, contrary to Faifai's argument, RCW 5.44.010 and RCW 5.44.040 are not the sole methods for authenticating public records. Rather, they provide a means of self-authentication, whereby certified copies of public records may be admitted into evidence without the necessity of authentication by live testimony. State v. Thompson, 35 Wn. App. 766, 769-70, 669 P.2d 1270 (1983) (citing State v. Stephens, 83 Wn.2d 485, 490, 519 P.2d 249 (1974)); see also ER 902(d). With a live witness available for cross examination, public documents need not be certified to be properly authenticated.
Here, Clark identified and authenticated the copy of the no contact order based on her independent personal knowledge of the document. Thus, the ER 901 requirements were met with respect to this document, and the trial court did not err in admitting it.
Character Evidence
Finally, Faifai contends that the trial court erred when it allowed the prosecutor to present evidence of Faifai's prior convictions and adjudications of violent offenses. As noted above, we review a trial court's decision on the admissibility of evidence for abuse of discretion. Powell, 126 Wn.2d at 258.
Evidence of bad acts is generally inadmissible if offered to establish a person's character or to show he acted in conformity with that character. ER 404(b); see Powell, 126 Wn.2d at 258. However, a defendant may offer evidence of prior acts to show a pertinent character trait of the defendant or the prosecution may offer evidence to rebut the same. ER 404(a)(1).
Assuming that a lack of a violent nature is a 'pertinent character trait' in an assault trial and that Faifai therefore had the right to present his character for peacefulness, he could do so only by reputation evidence. ER 404(a)(1); ER 405(a). Here, he generally asserted that he was not a violent person. As a result, he opened his nonviolent character in a way not sanctioned by the rules and gave the trial court discretion to allow the State to make a proportional response. The trial court did not abuse its discretion by allowing the State to present evidence of the prior violent offenses.
Faifai also appears to argue that the 1995 juvenile adjudications should not have been admitted because they were juvenile offenses that were old. But when he improperly injected his character into the trial, he went beyond the rules and entitled the State to do the same so long as it responded proportionally. Although the State's response obviously went beyond the rules, the trial court had discretion to allow it.
Faifai also appears to argue that the prosecutor forced him into opening the door on his character. We disagree. Although Faifai's testimony was in response to the prosecutor's questions, nothing suggests that the questions were designed to force this response. Accordingly, the trial court did not err in allowing the State to present evidence of Faifai's prior convictions and adjudications of violent offenses.
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.
MORGAN, J. and HOUGHTON, J., Concur.