Opinion
No. 35862-0-II.
August 19, 2008.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 06-1-00768-6, James J. Stonier, J., entered January 25, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
Donald Leslie Hadley appeals both his Cowlitz County Superior Court conviction for first degree assault — domestic violence and his exceptional sentence. We affirm.
FACTS
Hadley lived with his girlfriend, Brenda Frisk, for approximately two years in Longview, Washington, before Frisk decided to end the relationship and move to Portland, Oregon, without him. On August 20, 2006, Hadley and Frisk went to a local bar for drinks. Hadley took a "sawed-off bat" with him in his coat sleeve, allegedly for protection. 2 RP at 140. At the bar, Frisk and Hadley consumed about five drinks each. After a few hours at the bar, Hadley got angry about Frisk playing pool and talking with other men.
Hadley and Frisk then left the bar around the same time, but Frisk chose not to go home with Hadley, instead she chose to walk to the nearby home of Art Anderson, her ex-boyfriend, to sleep on his couch. Due to her intoxicated state, Frisk did not remember anything that happened at Anderson's house. Anderson testified that Frisk arrived at his house clearly intoxicated and distraught from arguing or fighting with Hadley. She first went to the wrong house before identifying Anderson's actual residence. Anderson stated that, although she was staggering, she did not have any trouble speaking. Frisk nagged and argued with Anderson, who told her that he did not want any part of it and then called the police to have them drive her home.
Frisk remembers getting out of a car outside her house and then walking inside where it was dark because Frisk and Hadley had not paid the electric bill. She then heard Hadley's voice behind her, which she described as loud and angry, much like a yell. She testified that she was scared when she heard him, based on how he treated her in the past. Frisk does not remember what happened next.
Frisk woke in her bed the next afternoon and tried to leave the bed to use the bathroom. She was dizzy and disoriented and her head hurt. She testified that her equilibrium was not right and that she did not have any balance. She noticed that her hair was "frizzy and matted up and had a lot of dried stuff on it." 2 RP at 150. She fell to the floor three times while attempting to leave her bed. Hadley was present when she made these attempts, but he did not want her to get up and told her to stay put. He told her that she just needed to lie down for a while. When she insisted that she needed to use the bathroom, he brought a pan so that she could relieve herself while still in bed.
Frisk waited until Hadley left the room to use the bathroom himself, then she crawled and used the walls for balance to get to the living room to call a friend for help. She called Marlene Hadley, Hadley's former sister-in-law, and left a message asking her for help. Marlene's boyfriend, John, called her back after hearing the message and told her he would take her to the hospital.
Hadley became angry when he discovered that Frisk was on the phone, and when Frisk told him that John was coming to take her to the hospital, he said that she could not go to the hospital looking like that. He then washed her hair in the kitchen sink using cold water, which hurt her a great deal. She testified that he then took a hairbrush and combed her hair to eliminate the tangles from the matted portion. Some of her hair came out in the process, which he threw in the trash can.
Frisk testified that the back of her head hurt badly, along with her knee and elbow, but that her eye hurt the worst. When she asked what was wrong with her, Hadley would not tell her anything other than that she needed to stay in bed. Shortly before John arrived, Hadley told Frisk that she had fallen and hit her head on the refrigerator.
At St. John Medical Center, the emergency room doctor noted that she had multiple facial and head injuries, including swelling to her left eye and a three-and-one-half centimeter laceration on the back of her head. Scans revealed that Frisk had a right subdural hematoma, a smaller left frontal subdural hematoma, and swelling around the laceration on the back of her head. Frisk had also suffered a concussion. In addition, she had a medial orbit fracture, which the doctor described as a fracture to the small bones in her left eye socket.
A hematoma is a blood clot.
Because St. John's did not have a neurosurgeon on staff, the doctor transferred her to the Oregon Health Sciences University (OHSU) in Portland. The OHSU doctors diagnosed Frisk with traumatic brain injury, meaning that the injury was the result of a fair amount of force.
Several doctors testified at trial about Frisk's injuries. Emergency room doctor, Dr. Theodore Leslie testified that Frisk's eye injury was the result of a directed force. He stated that although a simple fall could possibly create this kind of force, it was unlikely because the injury was only to her eye and not to the rest of her face. At OHSU, Dr. William Wilson determined that Frisk's injuries were traumatic brain injuries. He testified that although many types of injuries occur from falls, the combination of Frisk's injuries made a fall unlikely. Dr. Brett Ueeck, a maxillofacial surgeon, testified that eye injuries like Frisk's are most often associated with personal violence or sporting injuries. He noted that ground-level falls are usually associated with injuries to the nose, forehead, or chin, none of which occurred in Frisk's case.
Frisk's mother, Wilda Parkhurst, also testified that she tried to call Frisk around two or three o'clock on the afternoon that she was stuck in bed, but when Hadley answered, he told her that Frisk was sleeping and would have to call her back. He did not tell her about Frisk's injuries. Later that evening, presumably after John picked Frisk up to take her to the hospital, Hadley called Parkhurst and told her that Frisk was in the hospital because she fell and hit her head.
While Frisk was at OHSU, Parkhurst, along with Frisk's brother and sister-in-law, went to Frisk's house to gather her things so that she could move out. Parkhurst called the Longview police when she found blood in several rooms of the house.
In addition to the events of this case, Hadley and Frisk were in the process of being evicted from the house. Parkhurst had co-signed on the lease.
Detective Reece took pictures of bloodstains on the carpet in the kitchen, the stove, and the doorjamb of the bedroom door off the kitchen at Frisk's house. He photographed bloody bedding in the bedroom, and found a bloody washcloth in the bathroom and bloody hair in the kitchen trash can. He also found a pair of broken sunglasses tangled up in the bloody hair. Additionally, he located a back scratcher missing a middle wheel with "red on it" in the bedroom. 3 RP at 390.
Frisk testified that they did not normally keep the back scratcher in the bedroom and that it had not been broken the night before, nor was there any blood on it the night before. She testified that there was not any blood in the house the night before. In addition, she testified that she had been wearing her sunglasses the night before and that she had not thrown them away or broken them.
Marlene visited Frisk in the hospital and spoke to her about what happened. Frisk appeared nervous, scared, and confused. The next day, Marlene spoke to Hadley, who told her that he found Frisk injured but that he did not do it. He told her that he investigated several other bars that Frisk had been to the previous night and that he heard that somebody followed her home from the bar because she had upset the person at the bar.
Following her release from the hospital, Frisk continued to have difficulty concentrating, walking, and talking. Parkhurst took Frisk to a support shelter for women because she thought it would be the safest place for her. The women at the shelter helped attend to Frisk's injuries and helped her with toileting, moving around, and personal hygiene.
Frisk's next-door neighbor, Dana Ferguson, testified that, on the night of the incident, she came home around one-thirty or two o'clock in the morning and heard Frisk and Hadley fighting. She described Hadley's voice as eerie. She heard Frisk say, "I've had enough," to which Hadley replied, "I'll tell you when you've had enough." 3 RP at 325. She next heard Frisk moan and then heard a thud.
Detective Tim Deisher interviewed Frisk twice about what happened to her. On August 24, 2006, Frisk did not recall how she received the injuries, but she relayed to the detective that Hadley told her that she fell outside, although she was not sure if that was true. She told Detective Deisher she thought she left the bar with Hadley but she did not remember the walk home. On August 30, 2006, Frisk told the detective Hadley struck her with a souvenir bat in the front yard.
The State charged Hadley on June 29, 2006, with one count of first degree assault — domestic violence, or in the alternative, one count of second degree assault — domestic violence. On December 18, 2006, the State filed a separate notice of intent to seek an exceptional sentence, alleging deliberate cruelty and an on-going pattern of domestic violence. The State did not amend its charging information to include its intention to seek an exceptional sentence.
Before trial, the trial court held a hearing to determine the admissibility of Hadley's previous convictions and prior bad acts of domestic violence against Frisk. The State called Frisk, Marlene, Anderson, and Ferguson to testify to the prior acts and provided the trial court with a list of potential evidence. The trial court ruled that some of the instances were admissible to show motive or lack of accident, but not to show common scheme or plan. The trial court also admitted those acts as relating to Frisk's state of mind and her credibility while she testified. The trial court determined that the State proved the acts of misconduct by a preponderance of the evidence, that the acts were relevant to prove an element of the crime, and that the probative value outweighed any prejudice.
At the hearing, Frisk testified to the following instances of abuse: In 2002, Hadley kicked in the bathroom door, breaking the doorframe, entered the room, and punched Frisk in the face a few times. Frisk suffered bruising and swelling. Police were notified and Hadley was convicted of assault.
In 2003, Hadley kicked and stomped Frisk with his cowboy boots, breaking her denture plate in half. Frisk suffered at least 68 visible bruises on her body and was unable to leave bed for five days. Although Frisk did not tell anyone at the time that Hadley caused these injuries, Marlene witnessed the bruising.
Next, in September 2003, Hadley shoved Frisk down the stairs where she fell and cut her arm on a plate. Police arrested Hadley and he was convicted of assault.
In 2004, Hadley punched Frisk in the mouth, breaking her denture plate again. She jumped out of her bedroom window to escape. She did not report the incident because Hadley begged and pleaded with her and she hoped that he would get help for his problems. Anderson testified that Frisk showed up at his house later that evening barefoot.
Also in 2004, Hadley threw a full beer can at Frisk, striking her and splitting her forehead open. She did not go to the hospital because Hadley did not want anyone to know what had happened. She used butterfly bandages to seal her injury as best she could.
Frisk would sometimes carry weapons or put weapons around the house to protect herself. She would sometimes put knives in the bedroom doorjamb to prevent Hadley from getting inside. During the last few years, Hadley threatened to kill Frisk several times.
The State introduced citations supporting several of these allegations and the judgments and sentences showing Hadley's convictions for assaulting Frisk on September 13, 2003, and for assault and malicious mischief on July 15, 2002. The trial court also allowed Hadley to solicit evidence that Frisk had earlier run him down with her car while she was intoxicated. The trial court granted Hadley a continuing objection to the admission of all prior bad acts evidence.
Based on the trial court's ruling, the parties drafted an instruction to the jury, which the trial court gave before the State began its case in chief. Neither party objected to the instruction. The instruction provided:
If you determine, based on the evidence, that prior assaults occurred, that evidence of prior assaults by the Defendant on the victim may only be considered by you to understand the victim's state of mind at the time of any statements she made before testifying or while testifying and during the assault, if you determine an assault occurred. It might also be considered as proof of motive by the Defendant. The evidence of prior assaults by Ms. Brenda Frisk on the Defendant may only be considered by you as to bias on behalf of Ms. Frisk against the Defendant.
2 RP at 124-25.
Following arguments, the trial court instructed the jury on the charges but not on the aggravating factors. The jury found Hadley guilty of first degree assault and answered affirmatively through a special verdict form that Hadley and Frisk were family or household members at the time of the offense. The trial court then instructed the jury on the aggravating factors and both parties provided argument. The jury returned special verdict forms, finding that the State proved each of its alleged aggravating factors beyond a reasonable doubt. The trial court sentenced Hadley to an exceptional sentence of 192 months over Hadley's objection that he lacked notice of the aggravating factors because the State did not include them in the information.
ANALYSIS I. Sufficiency of the Evidence
Hadley contends that insufficient evidence supported his conviction. This court reviews Hadley's sufficiency challenge by viewing the evidence in the light most favorable to the State. State v. Brown, 162 Wn.2d 422, 428, 173 P.3d 245 (2007). We assess whether any rational trier of fact could have found the elements of the charged crime beyond a reasonable doubt. Brown, 162 Wn.2d at 428. We draw all reasonable inferences from the evidence in favor of the State and interpret them most strongly against the defendant. Brown, 162 Wn.2d at 428. Hadley's insufficiency claim admits the truth of the State's evidence and all reasonable inferences from it. Brown, 162 Wn.2d at 428. Circumstantial evidence is no less reliable than direct evidence and we can infer specific criminal intent from circumstances as a matter of logical probability. State v. Zamora, 63 Wn. App. 220, 223, 817 P.2d 880 (1991). We defer to the trier of fact on credibility of witnesses, conflicting testimony, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
RCW 9A.36.011(1)(a) provides:
(1) A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm:
(a) Assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death.
Hadley acknowledges that sufficient evidence supports that Frisk suffered a serious injury, but he argues that there was no evidence that a crime occurred. He cites State v. Aten, 130 Wn.2d 640, 666, 927 P.2d 210 (1996), for the proposition that evidence that equally supports both criminal and non-criminal activity is not sufficient evidence.
In Aten, the trial court convicted the defendant of second degree manslaughter of a four-month-old child that died while in the defendant's care. Aten, 130 Wn.2d at 644. Although the original diagnosis indicated that the child died from Sudden Infant Death Syndrome (SIDS), the defendant later confessed that on several occasions, she placed her hands on the mouth and nose of the child to keep her from crying, thereby causing the child's death. Aten, 130 Wn.2d at 652. At trial, the State offered expert testimony from the medical examiner that it was equally as likely that strangulation caused the death, as it was that SIDS caused it. Aten, 130 Wn.2d at 661-62.
Hadley contends that this case is similar and, thus, requires the same conclusion. He argues that the only evidence of causality came from the State's two medical experts, who each acknowledged that Frisk's injuries could come from a fall, especially a fall against the edge of a rounded instrument, such as a refrigerator. Further, there was blood on both the stove and the refrigerator, which Hadley claims proves that Frisk fell. Hadley contends that Frisk's own intoxication at the time made this possibility likely. Accordingly, he argues that the equal likelihood of either a fall or an assault requires this court to reverse his conviction. Hadley's argument lacks merit.
To prove first degree assault, the State had to prove that Hadley intentionally assaulted Frisk by a means likely to produce great bodily harm or death. RCW 9A.36.011(1). The State's theory was that Hadley hit Frisk in the head or face with either a baseball bat or a back scratcher. The State presented evidence that Frisk intended to end her relationship with Hadley, that she was going to move to Portland, and that Hadley was not welcome to join her. Hadley did not take this information well and did not want Frisk to move. The State elicited that, while drinking together the night of the incident, Hadley became angry at Frisk when she spoke with other men. Frustrated, Frisk chose not to go home with Hadley, instead going a separate direction.
Frisk then went to Anderson's house, where she was visibly upset and scared. She told Anderson that she had been in an argument with Hadley. Although Frisk was intoxicated, Anderson testified that she was able to walk, speak, and negotiate his torn-up front yard without incident.
Ferguson testified that she heard Frisk and Hadley around one-thirty or two o'clock in the morning. She heard him tell Frisk, "I'll tell you when you've had enough." 3 RP at 325. She then heard Frisk moan and heard Hadley say, "I'll be the one to say whether you can take more or not," followed by a loud thump and another moan from Frisk. 3 RP at 328.
Frisk testified that she tried to get Hadley to help her after she woke up the next day, but he denied her medical help, instead insisting that she just stay in bed for a while. Only after Frisk managed to escape to the living room to use the phone and arrange for help to come did Hadley tell her that she had fallen and hit her head on the refrigerator. Hadley was angry that she called for help, and only then did he try to get her cleaned up.
The State presented physical evidence and pictures of the home, including the bloody hair clump, broken glasses, bloody sheets, and bloody back scratcher. Parkhurst testified that there was blood in the kitchen, hallway, and all over the bedroom. Further, when Parkhurst called to speak with Frisk during that afternoon, Hadley claimed that she was asleep and did not mention that Frisk was hurt or injured in any way. Frisk testified that neither her sunglasses nor the back scratcher were broken before the previous night.
Finally, unlike Aten, doctors did not testify that it was equally likely that a fall caused Frisk's injuries. Dr. Leslie testified that Frisk's eye injury was the result of a directed force and that, although always a possibility, a simple fall was not the likely cause of her injuries due to the isolated area of the injury. Dr. Wilson testified that Frisk's injuries were traumatic brain injuries and that although many types of injuries occur from falls, the combination of Frisk's injuries made a fall unlikely. Finally, Dr. Ueech testified that eye injuries like Frisk's are most often associated with personal violence or sporting injuries and that Frisk was missing injuries to the nose, forehead, or chin, which often appear with ground-level falls. Sufficient evidence supported Hadley's conviction.
II. Similar Convictions and Uncharged Offenses
Hadley contends that there was little or no evidence that a crime occurred. Accordingly, he contends there is a high likelihood that, but for the improper admission of his previous convictions and bad acts, the jury would have acquitted him.
The decision to admit evidence lies within the trial court's sound discretion and we will not overturn such a decision absent a manifest abuse of discretion. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001). A trial court abuses its discretion when it is manifestly unreasonable or based on untenable grounds or reasons. Neal, 144 Wn.2d at 609.
ER 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
In balancing the probative value against the prejudice, courts consider the importance of the fact of consequence that the evidence is offered to prove, the strength and length of the chain of inferences necessary to establish the fact, whether the fact is disputed, the availability of alternative means of proof, and the potential effectiveness of a limiting instruction. State v. Kendrick, 47 Wn. App. 620, 628, 736 P.2d 1079, review denied, 108 Wn.2d 1024 (1987).
ER 404(b) addresses propensity evidence.
Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. 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.
To admit evidence under an exception to ER 404(b), the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify on the record the purposes for which it is admitting the evidence, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value of the evidence against its prejudicial effect. State v. Kilgore, 147 Wn.2d 288, 292, 53 P.3d 974 (2002).
Hadley argues that there was simply no way for the jury to overcome the overwhelming inclination to do just what they were not supposed to do, assume that he committed the assault because he committed the same crime against the same victim on previous occasions. He cites State v. Pogue, 104 Wn. App. 981, 17 P.3d 1272 (2001), and State v. Acosta, 123 Wn. App. 424, 98 P.3d 503 (2004), in support of his argument.
But courts routinely hold evidence of previous bad acts of misconduct admissible in spousal murder trials to show motive, lack of accident, or intent. In State v. Powell, 126 Wn.2d 244, 247, 893 P.2d 615 (1995), after the victim's body was found in Puget Sound, an autopsy revealed strangulation as the cause of death and the police subsequently arrested the victim's husband. Powell, 126 Wn.2d at 248. At trial, the trial court admitted evidence the defendant assaulted the victim four times in the year before her death, the night before the murder they verbally fought and the victim left the residence, and shortly before the murder, the defendant was angry when he learned that she had withdrawn money from the couple's joint account. Powell, 126 Wn.2d at 249-54.
The Powell court held that the admission of the previous assaults and fights was appropriate to show the defendant's motive, which was very important in the case because it involved circumstantial proof of guilt. Powell, 126 Wn.2d at 260. "[M]otive goes beyond gain and can demonstrate an impulse, desire, or any other moving power which causes an individual to act." Powell, 126 Wn.2d at 259. The Powell court held that testimony establishing the hostile relationship between the couple created a strong motive for the murder. Powell, 126 Wn.2d at 260. It then concluded that the lower court did indeed weigh the prejudice of all the evidence against its probative value in its decision to admit the evidence because the trial court carefully sorted through the proposed testimony and excluded a substantial amount of evidence in an effort to maintain a balance. Powell, 126 Wn.2d at 264-65. See also State v. Stenson, 132 Wn.2d 668, 706, 940 P.2d 1239 (1997) (evidence of defendant's relationship with his wife and of the beneficiary under the wife's life insurance policy relevant to show motive), cert. denied, 523 U.S. 1008 (1998); see also State v. Price, 126 Wn. App. 617, 638-39, 109 P.3d 27 (2005) (this court upheld the admission of evidence of quarrels or disputes between the victim and the defendant during the time leading up to the murder with a limiting instruction and held the evidence relevant for motive of assault or murder), review denied, 155 Wn.2d 1018 (2005).
Here, the trial court admitted evidence of Hadley's previous convictions for acts of domestic violence and previous unreported acts of domestic violence by Hadley against Frisk under ER 404(b) as evidence of motive or lack of accident and also for Frisk's state of mind during her testimony. Frisk testified that she had no memory of the actual assault. This left the State with a circumstantial case of identity. Like the Powell court, the trial court here was careful in its decision whether to admit each of the previous bad acts and balanced those on the record, even citing Powell. It appears that of the 18 proposed instances of previous misconduct, the trial court admitted 10. The trial court's reason for excluding eight instances was that they did not pertain directly to the history of domestic violence between the parties and were not probative.
During oral argument before this court, Hadley argued that when ER 404(b) refers to lack of accident, it is referring to where the defendant is an actor and claims that his actions were accidental in causing injury. But there is no such limitation in the rule, and case law concerning child abuse shows this to be a false premise. In the case of State v. Norlin, 134 Wn.2d 570, 951 P.2d 1131 (1998), the court dealt with a circumstance where the defendant claimed that the child had accidentally injured himself when he fell from the couch; and, the court admitted evidence of prior incidents of claimed accidental falls resulting in injury. For our purposes, the Norlin court required a connection only by the defendant to the prior injuries. Norlin, 134 Wn.2d at 581.
Regardless, we can affirm the trial court on any basis. Norlin, 134 Wn.2d at 582. Here, there was a question of the identity of the perpetrator of the purported assault. Hadley himself raised the issue of perpetrator identity when he told a witness that Frisk had upset a person at the bar and that person had followed her home. So, in addition to motive and lack of accident, the trial court could have relied on a question of identity for admitting Hadley's prior bad acts. ER 404(b).
Additionally, the trial court considered whether the jury would rely on the previous acts to conclude that Hadley must have committed this crime. The trial court chose to instruct the jury on this issue. The trial court determined that if the jury believed that Hadley committed the previous bad acts, it was not unfairly prejudicial to consider them as to his motive and to use them to weigh Frisk's credibility during her testimony.
We hold that the trial court did not abuse its discretion by admitting Hadley's previous bad acts to negate his claim that Frisk accidentally injured herself when she fell down while intoxicated. There is not a reasonable probability that the jury would have acquitted Hadley, based on the remaining overwhelming circumstantial evidence: (1) the State presented experts that opined that it was highly unlikely that Frisk received her injuries from a mere fall; (2) Ferguson testified that she heard Frisk moan and heard Hadley say, "I'll be the one to say whether you can take more or not," followed by a loud thump and another moan from Frisk. 3 RP at 328; (3) Frisk testified that Hadley denied her medical help, instead insisting that she just stay in bed for a while; (4) police photographed and Parkhurst described physical evidence and pictures of the home, including the bloody hair clump, broken glasses, bloody sheets, and bloody back scratcher. (5) When Parkhurst called to speak with Frisk during that afternoon, Hadley claimed that she was asleep and did not mention that Frisk was hurt or injured in any way; and (5) Frisk testified that neither her glasses nor the back scratcher were broken before the previous night.
III. Complaining Witness as Victim
Hadley contends that the trial court erred by commenting on the evidence when it provided the limiting instruction regarding his previous bad acts. Because a judicial comment on the evidence is an error of constitutional magnitude, Hadley may bring this claim for the first time on appeal. State v. Levy, 156 Wn.2d 709, 719-20, 132 P.3d 1076 (2006). "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." Wash. Const. art. IV, § 16. If we determine that the trial court's conduct or the trial court's remarks constituted a comment on the evidence, we presume the comments were prejudicial. State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995). Here, the trial court's remarks did not constitute a comment on the evidence.
Here, Hadley challenges the following instruction that the trial court provided to the jury to limit the potential prejudice from the admission of his previous bad acts. The trial court instructed:
THE COURT: Prior to calling the first witness, I have an instruction for you.
If you determine, based on the evidence, that prior assaults occurred, that evidence of prior assaults by the Defendant on the victim may only be considered by you to understand the victim's state of mind at the time of any statements she made before testifying or while testifying and during the assault, if you determine an assault occurred. It might also be considered as proof of motive by the Defendant. The evidence of prior assaults by Ms. Brenda Frisk on the Defendant may only be considered by you as to bias on behalf of Ms. Frisk against the Defendant.
2 RP at 124-25.
Hadley argues that in the first sentence of this instruction, the trial court tells the jury that it will hear evidence of alleged prior assaults by the defendant against the victim in this case. But the challenged instruction does not convey the trial court's opinion on any of the evidence. The instruction clearly instructs the jury that they must first find that the previous assaults occurred, as well as the current alleged assault, before they consider what impact the prior assaults had on the "victim." Br. of Resp't at 40. We agree with the State that the trial court's instruction merely led to a logical conclusion — that if the jury finds there was a crime, then the person that is the object of that crime is the victim. Hadley agreed to this instruction at the omnibus hearing, except to the word "victim." But, in any event, the instruction was not improper.
And any impact of the use of "victim" in the instruction was diminished when the trial court orally instructed the jury before deliberation and substituted the term "victim" with Frisk's name. Further, the trial court instructed the jury that they were the sole judges of credibility and that the trial court would not comment on the evidence. If the jury felt that the trial court had commented on the evidence, the trial court instructed it to disregard the comment. This court presumes that the jury follows the trial court's instructions. State v. Sivins, 138 Wn. App. 52, 61, 155 P.3d 982 (2007).
"If you determine, based on the evidence, that prior assaults occurred, the evidence of prior assaults by the Defendant on Ms. Frisk may only. . . ." 4 RP at 448.
We noted above that overwhelming untainted evidence independent of the trial court's instruction supported Hadley's conviction. There was no error.
IV. Ineffective Assistance
Hadley next argues that he received ineffective assistance when his trial counsel failed to object to testimony by Frisk and Parkhurst that after discharge from the hospital, Frisk moved to a women's shelter for four months because it was the "safest place for her." Br. of Appellant at 32. Specifically, he alleges that this statement was irrelevant and prejudicial and that no tactical reason existed for counsel to fail to object.
In order to establish ineffective assistance of counsel, Hadley must show that his trial counsel's performance was deficient. State v. Cienfuegos, 144 Wn.2d 222, 226, 25 P.3d 1011 (2001). He must show that counsel made errors that were so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Cienfuegos, 144 Wn.2d at 226-27. Next, Hadley must show that the deficient performance prejudiced his defense by showing that counsel's errors were so serious as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Hadley must show that, but for the ineffective assistance, there is a reasonable probability that the outcome would have differed. Strickland, 466 U.S. at 694.
The assertion that the women's shelter is the safest place for Frisk was irrelevant to her injuries. The statement was objectionable. Nevertheless, Hadley fails to show how, in the absence of the statement, the outcome would have differed. Strickland, 466 U.S. at 694. He again bases his assertion on his theory that there was not sufficient evidence that a crime occurred. There was overwhelming evidence however; and we hold that Hadley fails to establish ineffective assistance.
V. Cumulative Error
Hadley contends that the cumulative error doctrine requires reversal. We have the authority to reverse due to cumulative trial court errors, even if we considered each error on its own harmless, State v. Russell, 125 Wn.2d 24, 93, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995), but we do not do so here. Although we hold the shelter testimony was an error, there was not cumulative error.
VI. Notice of Exceptional Sentence
Hadley contends that the trial court erred by imposing an exceptional sentence based on aggravating factors that the State did not allege in the information. He claims that this violated his right to notice under Washington Constitution, article 1, section 22 and the Sixth Amendment.
Although not yet published when the parties filed their briefs, we recently addressed this exact issue in State v. Berrier, 143 Wn. App. 547, 178 P.3d 1064 (2008). The Berrier court addressed an article 1, section 22 and Sixth Amendment argument that the State must include the aggravating factors it seeks to pursue in the information, rather than by separate notice. Berrier, 143 Wn. App. at 558-59. We analyzed both RCW 9.94A.537 and State v. Pillatos, 159 Wn.2d 459, 483, 150 P.3d 1130 (2007), ultimately deciding that as long as the defendant's substantial rights are not prejudiced, the State may allege aggravating factors in its notice to seek an exceptional sentence separate and apart from the information. Berrier, 143 Wn. App. at 558-59. This argument fails.
SAG ISSUES VII. Exculpatory Evidence and False Charges
Hadley argues that the State withheld exculpatory evidence and falsified his charging documents. First, he argues that the State withheld Dr. Leslie's emergency room report, which stated that Frisk explained that she was very intoxicated and fell several times, thus causing her injuries. However, there is no evidence that the State did not produce Leslie's report. In fact, Hadley's trial counsel cross-examined Leslie based specifically on his report. His trial counsel asked, "[n]ow, in your report you indicate that Ms. Frisk told you that she fell several times; is that correct?" 3 RP at 260. This argument lacks merit.
He next argues that the State falsified evidence in his charging information by stating that Frisk had a skull fracture. The State included the alternative charge of second degree assault — domestic violence in its information. This alternative charge described Frisk's substantial bodily harm as facial fractures, skull fracture, concussion, and/or interfering with the ability to see. The State's first degree assault charge, for which the jury convicted Hadley, did not contain any mention of specific injuries. Accordingly, this issue is moot and we do not consider it.
Finally, Hadley contends that the State failed to provide transcripts of two of the three interviews that Detective Deisher conducted with Frisk. He contends that these interviews cast serious doubt on Frisk's credibility. However, Hadley is actually arguing that the jury should not have believed Frisk's story because of her inconsistent testimony. Specifically, he argues that Frisk testified that she fell in the front yard, she told Dr. Leslie she fell several times, she told Detective Deisher that Hadley struck her with a bat in the front yard, and she later remembered walking to Anderson's house. But his argument fails because this court does not review credibility determinations or inconsistent testimony on appeal. Walton, 64 Wn. App. at 415-16.
VIII. Ineffective Assistance
Hadley argues that his trial counsel provided ineffective assistance by contacting Anderson to get his story on what happened that night and by failing to object to scientifically untested evidence. Specifically, he contends that if counsel had not approached Anderson, Anderson would not have told Frisk that she had been at his house that night, thus allowing her to amend her story to include walking to Anderson's house after leaving the bar. Again, in order to establish ineffective assistance of counsel, Hadley must show that his trial counsel's performance was deficient. Cienfuegos, 144 Wn.2d at 226. We do not find ineffective assistance when the conduct in question goes to trial strategy or tactics. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Here, Hadley admits that he told trial counsel that Frisk went to Anderson's house. He then faults trial counsel for calling Anderson to inquire about his interaction with Frisk that night. Counsel's actions in interviewing a potential witness were clearly appropriate, and accordingly, Hadley's argument fails. Hendrickson, 129 Wn.2d at 77-78.
Hadley next argues that trial counsel's failure to object to scientifically untested evidence constituted ineffective assistance. Specifically, he faults trial counsel for failing to object to the admission of the bloody clothes, sheets, pillowcases, back scratcher, and the bloody hair. However, there was no question in this case at to whose blood it was. Hadley's strategy was general denial with an emphasis on the lack of evidence that a crime, as opposed to an accident, actually occurred. Hadley fails to show that his counsel's performance was deficient. Cienfuegos, 144 Wn.2d at 226.
Hadley also argues that Parkhurst tampered with the evidence before the police arrived at the house. Parkhurst testified that she did not disturb anything at the house. This argument fails because this court does not address credibility determinations on appeal. Hendrickson, 129 Wn.2d at 77-78.
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.
QUINN-BRINTNALL, J. and VAN DEREN, C.J., concur.