Opinion
No. 37670-9-II.
January 12, 2010.
Appeal from a judgment of the Superior Court for Clark County, No. 07-1-00942-6, Roger A. Bennett and John P. Wulle, JJ., entered April 24, 2008.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Van Deren, C.J., and Quinn-Brintnall, J.
Timothy Harrison appeals his conviction of second degree assault, arguing that the trial court violated his right to a speedy trial and erred in admitting evidence of his prior assaults against the victim, that he received ineffective assistance of counsel, and that cumulative error requires reversal. He also challenges his persistent offender life sentence, arguing that the trial court erred in counting a prior Oregon sodomy conviction as a "strike," that his life sentence violated his right to be free from cruel and unusual punishment, and that the trial court's persistent offender determination violated his right to a jury trial. Harrison raises additional issues in a pro se statement of additional grounds. Finding no reversible error, we affirm.
FACTS
Harrison spent May 21, 2007, in Portland with his girlfriend, Kristin Crots. They drove home to Vancouver that evening. Shortly after midnight, Crots received a phone call from someone who wanted to employ her as an escort. Harrison wanted them to drive back to Portland so she could take the job, but she did not want to go. Harrison became upset and pulled Crots down the stairs and outside into the parking lot of their apartment complex. He struck her with his hands and kicked her when she fell to the ground. When she got into the driver's seat of Harrison's car, Harrison struck her in the face, knocking her glasses off. Both she and Harrison got out of the car, and he hit her again. When she tried to get away, he threw her around and pushed her against other cars, the building, and onto the pavement. She gave up and got into the car after Harrison stabbed her in the eye with his finger.
Crots asked Harrison to take her to the hospital because of her severe eye pain. After driving to a hospital that he did not let her enter, Harrison drove to Providence Portland Medical Center and let Crots out of the car. Harrison did not accompany her inside.
Crots was admitted to the hospital at 6:13 am. She initially said she had been in a fight with another girl, but she then told the medical staff that Harrison had assaulted her. Crots was initially reluctant to file a police report, but she eventually gave a statement describing the altercation with Harrison in some detail. The emergency room doctor treated her for facial swelling and eye pain. Crots had a significant cut in her left eye. She returned to the hospital a few days later with continuing facial pain and new dental pain.
The police arranged with Crots to have Harrison pick her up at the hospital. When Harrison arrived, he was arrested and charged with first degree kidnapping, first degree robbery, and second degree assault, all with domestic violence allegations.
Harrison was arraigned on these charges on November 21, 2007, and received a trial date of January 14, 2008. On January 10, defense counsel moved for a continuance, asserting that he needed additional time to interview prosecution witnesses and provide competent representation. Harrison objected, but the trial court granted defense counsel's motion and rescheduled the trial for February 11, 2008. On February 6, the State requested an additional continuance because the physician who treated Crots was not available on February 11. The court granted the continuance over Harrison's objection and set March 10 as the new trial date.
The State obtained a material witness warrant to secure Crots's presence at the pretrial hearings and trial. Harrison acted as co-counsel during one of those hearings and presented to the court a notarized recantation letter from Crots. The State then argued that four prior assaults Harrison had inflicted on Crots were admissible under ER 404(b). The State contended that the prior assaults were relevant to the issue of Crots's state of mind during the kidnapping and "her state of mind in the account that she gave to the officers." Report of Proceedings (RP) at 5. Crots testified that Harrison's four prior assaults in 2006 and 2007 consisted of a strangulation that rendered her unconscious and blows that injured her pelvic bone and ribs and split her lip. She went to the hospital for the injuries to her pelvis and ribs but lied to the staff about their origin, stating that she fell off a bicycle and fought with another woman. She added that she got into the car with Harrison on May 22 because she feared for her life.
The defense objected to the prior assault evidence, arguing that it was of minimal relevance and would show only Harrison's propensity to beat Crots. Defense counsel added, however, that this evidence might be admissible if he attacked Crots's credibility with her recantation letter. The trial court ruled that the prior assaults were admissible to demonstrate Crots's state of mind:
Her state of mind is significant in a kidnapping case to show whether or not she, in fact, was in fear of the defendant. There — this is a classic situation of the State having to prove legitimate fear on her part, and the best way to do that is to show prior injuries.
The probative value is extremely high. The prejudice — the danger of undue prejudice, that is, being used for improper purposes such as propensity, does not greatly outweigh the probative value.
RPat 55. The court offered to give the jury a limiting instruction, but Harrison never requested one.
During Crots's trial testimony, the State played taped excerpts of phone calls Harrison made to her from jail, encouraging her to change her story and write a letter exonerating him. He also warned her to avoid being found so that she would not have to testify against him.
The jury acquitted Harrison of first degree robbery, deadlocked on the first degree kidnapping charge, and convicted him of second degree assault. The State argued at sentencing that Harrison had two prior offenses that qualified him to be sentenced to life without the possibility of parole under the Persistent Offender Accountability Act (POAA). The trial court found that Harrison's prior Oregon conviction for first degree sodomy was comparable to second degree rape in Washington and that his Oregon convictions for attempted murder and first degree assault were comparable to second degree assault in Washington. Both second degree rape and second degree assault are "strike" offenses. Former RCW 9.94A.030(29) (2006). The court sentenced Harrison to life in prison without the possibility of parole, rejecting his argument that such a sentence amounted to cruel and unusual punishment.
ANALYSIS I. Speedy Trial
CrR 3.3 provides that a defendant who is detained in jail shall be brought to trial within 60 days of his arraignment. CrR 3.3(b)(1)(i), (c)(1). The rule protects a defendant's constitutional right to a speedy trial and prevents undue and oppressive incarceration before trial. State v. Kingen, 39 Wn. App. 124, 127, 692 P.2d 215 (1984). Nevertheless, the constitutional right to a speedy trial does not mandate trial within 60 days. State v. Torres, 111 Wn. App. 323, 330, 44 P.3d 903 (2002). CrR 3.3(f)(2) permits the trial court to continue the trial past 60 days when necessary in the "administration of justice and the defendant will not be prejudiced in the presentation of his or her defense." The rule adds that "[t]he bringing of such motion by or on behalf of any party waives that party's objection to the requested delay." CrR 3.3(f)(2). We review a trial court's grant of a continuance under CrR 3.3 for a manifest abuse of discretion, which prejudices the defendant. Torres, 111 Wn. App. at 330. A trial court does not abuse its discretion by granting a continuance to allow defense counsel more time to prepare for trial, even over the defendant's objection, to ensure effective representation and a fair trial. State v. Williams, 104 Wn. App. 516, 523, 17 P.3d 648 (2001).
Harrison's attorney asked for a continuance so that he could better prepare for trial. Harrison's argument that such a continuance was unnecessary is largely irrelevant, given that bringing a motion for continuance on behalf of a party waives that party's objection to the requested delay. CrR 3.3(f)(2). Moreover, after Harrison again complained of the alleged speedy trial violation at sentencing, the State explained that counsel had needed additional time to prepare because Harrison's case came in as a regular case and later became a three strikes case. Indeed, Harrison's trial attorney noted during the ER 404(b) hearing that his client's refusal to allow further continuances had prevented him from adequately interviewing the victim. Even if we disregarded the waiver, the trial court did not abuse its discretion in granting defense counsel's request for a continuance.
II. Evidence of Harrison's Prior Assaults
ER 404(b) provides that
[e]vidence 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 justify the admission of prior acts under ER 404(b), the State must demonstrate that the evidence serves a legitimate purpose, is relevant to prove an element of the crime charged, and that its probative value outweighs its prejudicial effect. State v. Magers, 164 Wn.2d 174, 184, 189 P.3d 126 (2008). We review a trial court's decision to admit ER 404(b) evidence for an abuse of discretion. State v. Grant, 83 Wn. App. 98, 105, 920 P.2d 609 (1996). A court abuses its discretion if the decision is manifestly unreasonable or based on untenable grounds. Grant, 83 Wn. App. at 105.
The State argued that four prior assaults Harrison inflicted on Crots were admissible under ER 404(b) to explain "her state of mind in the kidnap as well as her state of mind in the account that she gave to the officers." RP at 5. After Crots described the prior assaults and her resulting injuries, the court admitted them under ER 404(b), concluding that they explained Crots's fear of Harrison and why she got into the car with him. The court also concluded that the probative value of this evidence outweighed its prejudicial effect.
Harrison now argues that the trial court abused its discretion in admitting the prior assault evidence because it was not relevant to a nonpropensity issue and because its probative value did not outweigh its prejudicial effect, particularly with regard to his theft and assault charges. The State responds that the pattern of domestic violence was admissible to rebut the inference that Crots's inconsistent statements and conduct called into question her credibility regarding what occurred at the time of the crime.
The Washington Supreme Court recently considered this issue in Magers. The court cited with approval Karl Teglund's discussion of a Division I case:
[T]he defendant was charged with assaulting his wife[.] [T]he defendant's prior assaults against his wife were admissible on the theory that the evidence was "relevant and necessary to assess Ms. Grant's [the victim's] credibility as a witness and accordingly to prove that the charged assault actually occurred." . . . "The jury was entitled to evaluate her credibility with full knowledge of the dynamics of a relationship marked by domestic violence and the effect such a relationship has on the victim."
5D Karl B. Tegland, Washington Practice: Courtroom Handbook on Evidence ch. 5, at 250 (2007-08) (quoting Grant, 83 Wn. App. at 106, 108 (cited in Magers, 164 Wn.2d at 186)). The Magers court concluded that prior acts of domestic violence, involving the defendant and the crime victim, are admissible to assist the jury in judging the credibility of a recanting victim. Magers, 164 Wn.2d at 186.
Here, the trial court ruled that Harrison's prior acts of domestic violence against Crots were relevant to her state of mind during the kidnapping and when she made her statement describing the May 22 assault to the police. It is true that the court appeared to weigh the probative value of this evidence versus its prejudicial effect only with regard to the kidnapping charge. But it is also true that the defense admitted that this prior misconduct would be admissible if it chose to cross examine Crots about her recantation statement, which it did.
We can affirm the trial court on any basis the record supports. State v. Norlin, 134 Wn.2d 570, 582, 951 P.2d 1131 (1998). Here, Crots told different stories about her abuse to hospital personnel and eventually recanted her accusations against Harrison in a letter. In addition to explaining why she got into the car with Harrison, the prior abuse helps explain why she initially refused to identify Harrison as her assailant and why she recanted. Under Magers, the evidence of the prior assaults was admissible under ER 404(b) to help the jury assess Crots's credibility.
III. Ineffective Assistance of Counsel
A defendant has the constitutional right to effective assistance from counsel. See U.S. Const. amend. VI; Wash. Const. art. I, § 22. To show that counsel was ineffective, a defendant must establish both deficient representation and resulting prejudice. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). Deficient performance is not shown by matters that go to legitimate trial strategy or tactics. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). We give considerable deference to counsel's performance, presuming it was effective. Thomas, 109 Wn.2d at 226. To show prejudice, a defendant must demonstrate a reasonable probability that, but for counsel's errors, the trial result would have been different. Thomas, 109 Wn.2d at 226.
Harrison faults his counsel for (1) not objecting under ER 404(b) to evidence implying that he seduced Crots into prostitution; (2) not proposing a limiting instruction as to the prior assault evidence; and (3) failing to preserve his speedy trial violation by objecting to the extension of his trial date to February 11.
Harrison first contends that the following testimony and argument should have elicited an objection under ER 404(b). Crots testified on redirect that she did not engage in prostitution until she met Harrison, and Harrison's mother testified that she told Crots not to get involved in prostitution. In addition, the State referred to Crots's prostitution during closing argument:
Defense counsel wanted to really focus on the fact that, you know, something like this could possibly happen to her, because look at her, she's a prostitute. She's just a hooker.
Well, we talked about that already. And we're not in heaven, so none of the witnesses are gonna be angels. But one of the things that you can clearly look at here is that this isn't something that she did before. She'd never done this before until she started this relationship with this loving man, the man that even his mother went — had to go speak with his — with her to let her know, Don't get into prostitution.
RPat 327-28.
The first statement at issue was made after defense counsel cross examined Crots about why she had revealed only recently that her refusal to engage in prostitution prompted the assault. (Crots did not include this detail in her police statement.) On redirect, the State elicited her testimony that she was ashamed to have been working as an escort and that she did not do such work before she met Harrison. Contrary to Harrison's current complaint, this redirect testimony did not expressly characterize him as Crots's pimp. Moreover, any implication of such misconduct pertained to the time and circumstances of the offense rather than a prior event and helped explain why Harrison assaulted Crots. See State v. Rooks, 130 Wn. App. 787, 794, 125 P.3d 192 (2005) (history of relationship between defendant and victim, including defendant's controlling and abusive behavior, was relevant to prove motive for victim's murder). Consequently, an ER 404(b) objection would not have been successful.
When the State asked Harrison's mother whether she had concerns about her son trying to have Crots prostitute, the defense objected on grounds of relevance. The trial court overruled the objection, and Harrison's mother answered only that she had told Crots not to get into prostitution. Here again, this testimony did not suggest prior misconduct sufficient to exclude this testimony.
The State's closing argument attempted to defend and uphold the victim's credibility despite her work as a prostitute and despite her admissions that she initially lied about the perpetrator of her current and prior assaults. This argument was based on the testimony at trial, and an objection would not have been appropriate or successful. See State v. Millante, 80 Wn. App. 237, 250, 908 P.2d 374 (1995) (during closing argument, State has wide latitude in drawing reasonable inferences from the evidence). Harrison can show neither deficient performance nor prejudice as a result of his attorney's failure to object, under ER 404(b), to the testimony or argument concerning Crots's work as a prostitute.
Harrison next asserts that his attorney should have asked the trial court to instruct the jury that it could use the prior assault evidence only for the limited purpose of showing Crots's state of mind when she got into the car. But the defense sought to use this evidence to its advantage as it portrayed Crots as a liar who repeatedly changed her stories about the origin of her current and prior injuries. Once the defense used this evidence to challenge Crots's credibility, an instruction limiting it to show her state of mind was inappropriate. Thus, the defense had a tactical reason for failing to request a limiting instruction, and this claim of ineffective assistance fails. See State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 (2000) (failure to propose ER 404(b) limiting instruction was tactical decision).
Finally, Harrison contends that his counsel should have timely objected to the February 11 trial date that resulted from defense counsel's request for a continuance. See CrR 3.3(d)(3) (party who objects to resetting of trial date must object within 10 days after notice of new date). As stated earlier, defense counsel waived the right to object to the requested delay by bringing the motion for continuance. CrR 3.3(f)(2).
IV. Cumulative Error
The cumulative error doctrine entitles the defendant to a new trial when it is reasonably probable that errors, while individually not justifying reversal, cumulatively denied the defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Because Harrison has not demonstrated any error, the doctrine does not help him.
V. Harrison's Oregon Conviction as a "Strike" Offense
Harrison raises two arguments here. He first argues that the trial court erred in ruling that his prior Oregon conviction for sodomy was comparable to second degree rape in Washington, a strike offense under the POAA. Former RCW 9.94A.030(29)(a). He also argues that his prior sodomy conviction was not a strike because Oregon does not require unanimous jury verdicts in criminal trials.
If a defendant is found to be a persistent offender under the POAA, the court must sentence the defendant to life in prison without the possibility of parole. RCW 9.94A.570. A persistent offender is someone who is convicted of a most serious or "strike" offense and who has previously been convicted on at least two separate occasions, in this state or elsewhere, of felonies that would be considered most serious offenses and that would be included in the offender score. Former RCW 9.94A.030(33); State v. Berry, 141 Wn.2d 121, 130, 5 P.3d 658 (2000).
It is undisputed that second degree assault, the crime for which Harrison was sentenced, is a strike offense. Former RCW 9.94A.030(29)(b). It is also undisputed that his prior Oregon convictions for attempted murder and first degree assault were each comparable to second degree assault in Washington and counted as a second strike. (Harrison was convicted of these offenses at the same trial, so they count as only one most serious offense. Former RCW 9.94A.030(33)(a)(ii).) The issue is whether Harrison's subsequent Oregon conviction for first degree sodomy is comparable to second degree rape in Washington.
Harrison does not challenge his identity as the perpetrator of the Oregon offense.
To determine whether a foreign conviction should count as a strike offense, the court employs a two-part comparability analysis. State v. Johnson, 150 Wn. App. 663, 676, 208 P.3d 1265, review denied, — P.3d — (2009). The court first determines whether the elements of the foreign offense are substantially similar to the Washington offense. Johnson, 150 Wn. App. at 676. If the elements of the foreign offense are broader, the court must determine whether the offense is factually comparable; i.e., whether the conduct underlying the foreign offense would have violated the comparable Washington statute. Johnson, 150 Wn. App. at 676. If a factual analysis is necessary, the court considers only facts admitted or stipulated to by the defendant, or proved beyond a reasonable doubt. Johnson, 150 Wn. App. at 676. If the foreign conviction is neither legally nor factually comparable, the sentencing court cannot consider it as a most serious offense under the POAA. Johnson, 150 Wn. App. at 676-77.
The Oregon Revised Code (ORS) defines first degree sodomy as:
(1) A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if:
(a) The victim is subjected to forcible compulsion by the actor;
(b) The victim is under 12 years of age;
(c) The victim is under 16 years of age and is the actor's brother or sister, of the whole or half blood, the son or daughter of the actor or the son or daughter of the actor's spouse; or
(d) The victim is incapable of consent by reason of mental defect, mental incapacitation or physical helplessness.
(2) Sodomy in the first degree is a Class A felony.
ORS 163.405. Washington defines second degree rape, insofar as relevant here, as:
(1) A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person;
(a) By forcible compulsion;
(b) When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated;. . . .
. . . .
(2) Rape in the second degree is a class A felony.
RCW 9A.44.050.
Harrison argues that the Oregon statute is broader than the Washington statute because of the different ways the states define the mental elements involved. Oregon defines "mentally defective" as "a mental disease or defect that renders the person incapable of appraising the nature of the conduct of the person." ORS 163.305(3). Washington defines "mental incapacity" as "that condition existing at the time of the offense which prevents a person from understanding the nature or consequences of the act of sexual intercourse. . . ." RCW 9A.44.010(4). According to Harrison, if a Washington victim understands the nature and consequences of sexual intercourse, even if she is incapable of appraising her own conduct, the defendant would not be guilty of second degree rape. He asserts that under Oregon law, however, if the victim understands the nature and consequences of sexual intercourse but engaged in conduct she was incapable of appraising, the defendant would be guilty of first degree sodomy.
Harrison misreads the definitions at issue, as both refer to a person's inability to understand the nature of her conduct and do not address a separate understanding of the conduct itself. It is nonsensical to argue, as Harrison does, that someone can understand the nature of sexual intercourse but then engage in intercourse she cannot understand. Contrary to Harrison's assertion, the Washington definition is broader in that it includes persons who do not understand either the nature of the conduct or its consequences. State v. Ortega-Martinez, 124 Wn.2d 702, 711-12, 881 P.2d 231 (1994).
Harrison's argument that Oregon's definition of "mentally defective" makes the Oregon offense of first degree sodomy broader than the Washington offense of second degree rape is not well taken. But even if he is correct, we can turn to the second part of the comparability test. The trial court considered documentation showing that Harrison was charged with first degree sodomy after he engaged in anal intercourse with the victim by forcible compulsion. A jury found Harrison guilty as charged. The trial court found this offense factually comparable to second degree rape in Washington, which is also accomplished by forcibly engaging in sexual intercourse. RCW 9A.44.050(1)(a). The trial court correctly determined that Harrison's first degree sodomy conviction is comparable to second degree rape.
Harrison also argues that his sodomy conviction is not comparable to a Washington offense because Oregon, unlike Washington, does not require a unanimous 12-person verdict to sustain a criminal conviction. Oregon Const. art. I, § 11; Wash. Const. art. I, § 21. We rejected this argument in State v. Gimarelli, 105 Wn. App. 370, 20 P.3d 430 (2001). Under the Full Faith and Credit Clause of the United States Constitution, a judgment from any other state is valid in Washington unless the foreign court lacked jurisdiction or the conviction is constitutionally invalid. Gimarelli, 105 Wn. App. at 377. The defendant's prior Oregon conviction was valid under both the Oregon and United States constitutions and thus properly considered as a strike offense. Gimarelli, 105 Wn. App. at 379; see also Johnson, 150 Wn. App. at 679 (Division One decision applying Gimarelli). We adhere to the reasoning in Gimarelli and uphold the trial court's comparability finding.
VI. Cruel and Unusual Punishment
Both the federal and state constitutions bar cruel and unusual punishment. U.S. Const. amend. VIII; Wash. Const. art. I, § 14. Although the Washington Supreme Court has held that the POAA does not itself constitute cruel punishment, it has recognized that there may be cases in which application of the Act's sentencing provision runs afoul of the constitutional prohibition against cruel punishment. State v. Thorne, 129 Wn.2d 736, 773 n. 11, 921 P.2d 514 (1996).
Harrison argues that this is such a case. He points out that the maximum sentence possible for second degree assault, a class B felony, is 120 months. RCW 9A.20.021(1)(b). He adds that the highest standard range, based on an offender score of 9, would be 63 to 84 months. RCW 9.94A.510, .515. Harrison urges us to reassess his punishment under the factors set forth in State v. Fain, 94 Wn.2d 387, 397, 617 P.2d 720 (1980). In determining whether a life sentence was grossly disproportionate to the fraud offenses for which it was imposed and thus violated the prohibition against cruel punishment, the Fain court considered (1) the nature of the offense; (2) the legislative purpose behind the habitual criminal statute; (3) the punishment the defendant would have received in other jurisdictions; and (4) the punishment imposed for other offenses in the same jurisdiction. Fain, 94 Wn.2d at 397.
Division One considered the Fain factors in addressing whether a life sentence imposed under the POAA was cruel and unusual punishment where the current offense was second degree assault. State v. Ames, 89 Wn. App. 702, 709, 950 P.2d 514 (1998). The court first observed that second degree assault is a most serious offense. Ames, 89 Wn. App. at 709. The purposes of the POAA include deterring those who would otherwise commit three most serious offenses and segregating those who do from the rest of society. Ames, 89 Wn. App. at 709. The Ames court then observed that Washington's persistent offender statute is similar to state and federal legislation throughout most of the United States and that the defendant likely would have received a similarly harsh sentence in most jurisdictions. Ames, 89 Wn. App. at 710. Finally, the court observed that all defendants who are convicted of a third strike receive sentences of life without parole. Ames, 89 Wn. App. at 710 (citing Thorne, 129 Wn.2d at 775; State v. Rivers, 129 Wn.2d 697, 714, 921 P.2d 495 (1996)). The court added that the defendant's three strikes (second degree assault and first and second degree robbery) were serious, violent offenses directly comparable to those in Thorne and Rivers. Ames, 89 Wn. App. at 710; see Thorne, 129 Wn.2d at 749 (first and second degree robbery and first degree kidnapping); Rivers, 129 Wn.2d at 704, 713 (attempted second degree robbery, second degree robbery and second degree assault).
The trial court rejected Harrison's argument that his life sentence for second degree assault, based partly on Oregon offenses comparable to second degree rape and second degree assault, was cruel and unusual punishment. The court focused on the nature of Harrison's current offense.
This is a horrible offense. . . . [T]he evidence was there for the jury to find that this victim was treated like a worthless slave, like a piece of meat, like a piece of garbage and a — a person of no worth. That's how she was treated.
She was ordered to commit an act of prostitution. She didn't want to on that particular occasion, although that had been conduct she'd engaged in previously, and she was just severely beaten. Her eye was poked, as you point out. Her teeth were cracked. She had numerous other injuries.
RPat 423-24. The court concluded that the current offense was sufficient to trigger the POAA. We agree. Harrison's life sentence under the POAA does not constitute cruel and unusual punishment.
VII. Right to Jury Trial on the POAA Determination
Harrison next contends that the trial court violated his right to a jury trial when it determined the existence of his prior convictions by a preponderance of the evidence. He argues that he was entitled to have a jury find his prior convictions beyond a reasonable doubt.
Findings of prior convictions are excluded from the requirement that juries must decide aggravating factors that support a sentence above the standard range. State v. Hughes, 154 Wn.2d 118, 137, 110 P.3d 192 (2005) (citing Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)), abrogated on other grounds, Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006). Therefore, judges may decide whether a defendant had a prior conviction. Hughes, 154 Wn.2d at 137. After a trial court determines that the relevant facts in a foreign court's record have been proved beyond a reasonable doubt, the trial court may conduct a comparability analysis and include a prior foreign conviction in the offender score. State v. Farnsworth, 133 Wn. App. 1, 16, 130 P.3d 389 (2006). The comparability analysis does not violate a defendant's right to a jury trial, as set forth in Blakely. Farnsworth, 133 Wn. App. at 16; see also State v. Thomas, 135 Wn. App. 474, 482, 144 P.3d 1178 (2006) (Division One decision applying Farnsworth).
VIII. Statement of Additional Grounds (SAG) Issues
Harrison raises four issues in his SAG in addition to the speedy trial complaint previously addressed.
1. Evidence of Crots's Injuries
Harrison argues here that there was no evidence of some of the injuries Crots described at trial. He points specifically to her statements that she had cracked teeth after he assaulted her. It is true that there is no independent evidence to support Crots's statement, although her physician testified that she returned to the hospital a few days after the assault with new complaints of dental pain. Any such insufficiency is largely irrelevant, however, given that her other injuries were supported by testimony of medical personnel and law enforcement officers, and by the admission of several photographs. In particular, there was testimony that Crots's vision was impaired as a result of the assault. There was sufficient evidence of substantial bodily harm apart from the allegation of cracked teeth to support Harrison's conviction of second degree assault. See RCW 9A.04.110(4)(b) (substantial bodily harm needed to prove second degree assault shown by bodily injury causing temporary but substantial disfigurement or temporary but substantial impairment of any bodily part).
2. Defense Counsel's Failure to Object
Harrison appears to argue that his counsel ineffectively represented him by failing to object to the prior assault evidence and to the admission of phone calls that he did not know were being taped, and by failing to cross examine Crots about her criminal history. The record shows that defense counsel did object to the prior assault evidence as well as the phone tapes. The record also shows that Harrison was informed during each phone call that it was being taped. There is no evidence of Crots's criminal history in the record, aside from the prostitution that the defense explored at length. This claim has no merit.
3. Misconduct of Prosecuting Attorney
Harrison next contends that the prosecuting attorney coerced Crots into testifying falsely about her work as an escort and about her cracked teeth. He also complains that the prosecuting attorney referred to the prior assault evidence during closing argument. There is no support for his allegation that Crots's testimony was either coerced or false, and the prior assault evidence was part of the record and properly referenced in closing argument.
4. Rushed Jury Verdict
Finally, Harrison contends that after learning that the jury was deadlocked on two of the three charges against him, the trial judge instructed the jury to reach a decision on the third charge because he had a prior commitment. The record does not support this assertion.
We affirm Harrison's conviction and his sentence.
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.