Opinion
41986-6-II
02-12-2013
STATE OF WASHINGTON, Respondent. v. MATTHEW NMI LAVALSIT, Appellant
UNPUBLISHED OPINION
Johanson, A.C.J.
Matthew NMI Lavalsit appeals his jury trial conviction for third degree assault of a nurse or healthcare provider. We hold that (1) the trial court did not err when it admitted relevant, probative, and not unduly prejudicial evidence; (2) the trial court was not biased; (3) Lavalsit received effective assistance of counsel; and (4) the evidence supported the jury instructions on third degree assault. Accordingly, we affirm.
FACTS
I. Background
In July 2010, Rosemary Dusty Vonberg, a registered nurse who provided hospice services, attempted to contact Debra Ann Upsahl about admitting Upsahl's mother, a hospice referral patient, into hospice services. Although Vonberg and Upsahl had arranged to meet at the patient's home later that day, Vonberg was delayed and, despite having contacted Upsahl, no one was at the home when Vonberg arrived. When Vonberg informed the assigned medical social worker, Jan Kerman, that the meeting did not occur, Kerman said that she would go to the house the next day.
Unable to reach Upshal by phone the next day, Kerman decided to go to the patient's house. The patient eventually let Kerman into the house. The patient, whom Kerman knew had dementia, appeared "disheveled and appeared to be a little under distress." Verbatim Report of Proceedings (VRP) (March 14-16, 2011) at 119.
Finding no one else in the home, Kerman called Vonberg. Vonberg arrived, introduced herself to the patient, and started to examine her. The patient's heartbeat was "a little irregular, " and she was dehydrated. VRP (March 14-16, 2011) at 95. She also appeared to need 24-hour care, so Vonberg called 911 for assistance. Emergency Medical Technicians (EMTs) Brandon John Robichaux and Steve Green responded to the call.
The EMTs arrived at the house the same time Lavalsit and Upsahl arrived in Lavalsit's truck. Robichaux told Lavalsit and Upsahl that a nurse had reported "'an unknown medical situation.'" VRP (March 14-16, 2011) at 33. He and Green went inside and started to talk to Vonberg about the patient; Upsahl and Lavalsit quickly interrupted them. Upsahl yelled at Vonberg, asked Vonberg why she was in the house, accused her of breaking into the house, and told her to leave. Vonberg identified herself and explained that she was there to admit the patient. Upsahl told Vonberg she was "fired, " so Vonberg started to collect her belongings and leave as Upsahl continued to yell at her. VRP (March 14-16, 2011) at 98. According to Vonberg, Lavalsit also approached her, "cursing, " and said, "Leave, you fucking bitch." VRP (March 14-16, 2011) at 98-99. Although she assured Lavalsit she was leaving, he continued to call her names and then stood in her way when she attempted to leave.
Robichaux called for law enforcement assistance. Either inside the house or immediately outside the house, Lavalsit pushed or "hit" Vonberg as she and Kerman were attempting to return to their vehicles. See VRP (March 14-16, 2011) at 42, 100. According to some of the witnesses, Lavalsit also attempted to hold Vonberg's vehicle's door open and "lung[ed]" at her. VRP (March 14-16, 2011) at 128. He also struck the back of Vonberg's vehicle with his hand as she was attempting to back up.
After Lavalsit overheard Robichaux communicating with law enforcement, Robichaux explained to Lavalsit that he had called for assistance because Lavalsit had "'shoved a hospice nurse.'" VRP (March 14-16, 2011) at 47. Lavalsit then drove away in his truck just as the deputies arrived. VRP at 47-48. Robichaux directed them towards Lavalsit's truck.
When the deputies stopped Lavalsit, he got out of the truck and refused to comply with their repeated command to move to the back of his truck and to turn around. He appeared "belligerent, " "hostile[, ] and angry, " and started approaching the deputies. VRP (March 14-16, 2011) at 59-60. When one of the deputies pulled out his Taser, Lavalsit raised his hands; said, "'Come on, guys'"; and stopped advancing toward the deputies. VRP (March 14-16, 2011) at 60. The deputies then "grabbed" his arms; Lavalsit was "tense, resisting and trying to twist and pull away at that point." VRP (March 14-16, 2011) at 60. The deputies eventually pushed him to the ground and were able to handcuff him. Lavalsit threatened to sue the deputies, and he asserted that he did not "'know what [was] going on'" and had been "'trying to help the situation.'" VRP (March 14-16, 2011) at 80.
After the deputies advised him of his Miranda rights, Lavalsit told them that he had been trying to calm everything down, that there were "a couple of hospice nurses" at the house, and that he did nothing. VRP (March 14-16, 2011) at 81. He denied touching, pushing, or shoving one of the nurses; but he admitted that he had "touched one shoulder to calm [one of them] down" and "shook the other one's hand." VRP (March 14-16, 2011) at 82. He also asserted that one nurse had tried to hit his truck with her car and stated that he wanted her charged.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
II. Procedure
The State charged Lavalsit with third degree assault of a nurse or health care provider who was performing her nursing or health care duties at the time of the assault.
Former RCW 9A.36.031(1)(h) (2005).
Lavalsit moved in limine to exclude evidence related to his having resisting arrest and to his having hit Vonberg's vehicle or his having attempted to "pull her out" of the vehicle. Clerk's Papers (CP) at 33. He argued that this evidence was not relevant and was unfairly prejudicial.
There was no trial testimony that Lavalsit had attempted to pull Vonberg out of her vehicle; at best, there was testimony that he had "lunge[d]" at her. VRP (March 14-16, 2011) at 128.
Although the trial court ruled that the State could not refer to Lavalsit's behavior during the arrest as "resisting arrest, " it admitted the evidence related to Lavalsit's arrest. VRP (March 14-16, 2011) at 11, 13. It found that this evidence "relate[d] to credibility of all the surrounding circumstances" and that the potential prejudice did not outweigh the probative value. VRP (March 14-16, 2011) at 11. Noting that the issue of whether the evidence that Lavalsit struck Vonberg's vehicle or tried to pull her from the vehicle was admissible was very similar to the "resisting arrest" issue, but without specifically discussing that evidence's potential prejudice, the trial court also ruled that particular evidence was probative and admissible.
The State's witnesses testified as described above. In contrast, Upsahl and Lavalsit testified that Lavalsit had not approached, threatened, or assaulted Vonberg. Lavalsit also testified that he had not attempted to keep Vonberg from closing her vehicle's door. He admitted that he had struck her vehicle with his hand, but he asserted that he had done so only because he thought Vonberg was going to back over him. Overall, Lavalsit attempted to present himself as having been calm and cooperative throughout his contact with Vonberg and Kerman.
The jury found Lavalsit guilty of third degree assault. Lavalsit appeals.
ANALYSIS
I. Evidentiary Rulings
Lavalsit first argues that the trial court erred when it admitted evidence related to his behavior during his arrest and evidence that he had hit Vonberg's vehicle with his hand and had attempted to open her door. He contends that this arrest-related evidence was irrelevant and unfairly prejudicial and that the trial court failed to consider whether the evidence that he hit Vonberg's vehicle or tried to open her door was prejudicial. Lavalsit also suggests that this evidence was evidence of other misconduct that was not admissible under ER 404(b). Although Lavalsit did not present specific ER 404(b) objections in the trial court, a prejudice objection can preserve such an issue for appeal. State v. Mason, 160 Wn.2d 910, 933, 162 P.3d 396 (2007), cert. denied, 553 U.S. 1035 (2008). Nevertheless, these arguments fail.
The State contends that Lavalsit waived any ER 404(b) objection.
A. Standard of Review
We review the trial court's admission of evidence for abuse of discretion. State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007). A trial court abuses its discretion when its decision is manifestly unreasonable or rests on untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). A decision is based "on untenable grounds" or made "for untenable reasons" if it rests on facts unsupported in the record or was reached by applying the wrong legal standard. State v. Rundquist, 79 Wn.App. 786, 793, 905 P.2d 922 (1995), review denied, 129 Wn.2d 1003 (1996). A decision is manifestly unreasonable if the trial court, despite applying the correct legal standard to the supported facts, adopts a view "that no reasonable person would take, " State v. Lewis, 115 Wn.2d 294, 298-99, 797 P.2d 1141 (1990), and arrives at a decision "outside the range of acceptable choices given the facts and the legal standard." Rundquist, 79 Wn.App. at 793.
"Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion." ER 404(a). Under ER 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove character or conformity therewith, but may 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). The list of other admissible purposes for which a defendant's other misconduct may be introduced, under ER 404(b), is not exclusive. State v. Grant, 83 Wn.App. 98, 105, 920 P.2d 609 (1996) (citing State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995)). But such evidence is admissible only if it is both relevant and not unfairly prejudicial. State v. Sutherby, 165 Wn.2d 870, 886, 204 P.3d 916 (2009).
B. Resisting Arrest
Lavalsit argues that the evidence that he resisted arrest was irrelevant and unfairly prejudicial. The trial court found that its "probative value . . . outweighs the potential prejudice." VRP (March 14-16, 2011) at 11. We cannot say that the trial court abused its discretion. First, Lavalsit was contacted by police within minutes of having fled the scene of the assault. Evidence that Lavalsit acted in an angry, belligerent manner toward the police was relevant to Lavalsit's demeanor and state of mind during the assault. The evidence of Lavalsit's refusal to comply with the deputies' instructions and his struggling with the deputies when they attempted to restrain him was in contrast to Lavalsit's evidence suggesting that he had remained calm and helpful throughout the incident; and it showed that Lavalsit was behaving in an aggressive and agitated manner around the time of the assault. See State v. Bruton, 66 Wn.2d 111, 112, 401 P.2d 340 (1965); State v. Nordlund, 113 Wn.App. 171, 188, 53 P.3d 520 (2002), review denied, 149 Wn.2d 1005 (2003).
In addition, this evidence was admissible to show Lavalsit's consciousness of guilt. Evidence of actual "resistance to arrest" is admissible if it allows "a reasonable inference of consciousness of guilt of the charged crime." State v. Freeburg, 105 Wn.App. 492, 497-98, 20 P.3d 984 (2001). Lavalsit was aware the police had been called and he left the scene immediately. When his vehicle was stopped, he resisted the deputies and acted belligerently toward them. A reasonable inference could be drawn that these acts demonstrated a consciousness of guilt. Although Lavalsit's failure to cooperate with the deputies following the assault was potentially prejudicial, we cannot say that the trial court abused its discretion when it found that the probative value of the evidence outweighed the potential prejudice.
C. Hitting Vonberg's Vehicle and Trying To Open Her Door
Lavalsit also argues that the trial court erred in failing to consider possible prejudice before admitting the evidence that he attempted to open Vonberg's vehicle door or that he struck her vehicle with his hand. The record does not contain any express discussion of the potential prejudice related to this specific evidence. But Lavalsit argued that this evidence was unfairly prejudicial, there is no indication that the trial court did not consider any potential prejudice, and the trial court noted that this evidence was similar in nature to the resisting arrest evidence that it had clearly stated was not unfairly prejudicial. Thus, the record as a whole implies that the trial court considered the potential prejudice of this evidence.
In addition we may affirm on any ground the record supports. State v. Carter, 127 Wn.2d 836, 841, 904 P.2d 290 (1995). This evidence related to Lavalsit's continuing conduct was extremely close to the time of the assault and was highly probative to show Lavalsit was behaving aggressively, contrary to the contradictory evidence Lavalsit presented. Under these circumstances, this evidence was relevant, highly probative, and not unfairly prejudicial; the trial court did not abuse its discretion in admitting it.
II. Trial Court Bias
Lavalsit next argues that the trial court denied him a fair trial because the trial court demonstrated that it was biased against him. Citing several instances where the trial court commented on Lavalsit's and Upsahl's testimony without any party objecting, Lavalsit asserts that these actions communicated the trial court's "annoyance and bias toward the defense in the presence of the jury." Br. of Appellant at 22. In his Statement of Additional Grounds, citing jury instructions 6, 7, 8, 9, and 10, he further asserts that the trial court's failure to provide "an equal weight of instructions to the jury on the laws that must be applied to the facts or evidence heard from the plaintiff" also demonstrated bias by focusing the jury on "laws against the defense." SAG (Additional Ground 3). Neither argument is persuasive.
RAP 10.10.
A. Standard of Review
"Due process, the appearance of fairness, " and the Code of Judicial Conduct "require disqualification of a judge who is biased against a party or whose impartiality may be reasonably questioned." Wolfkill Feed and Fertilizer Corp. v. Martin, 103 Wn.App. 836, 841, 14 P.3d 877 (2000). But a trial court is presumed to perform its functions without bias. Wolfkill, 103 Wn.App. at 841. The appearance of fairness doctrine is violated only when a reasonably prudent and disinterested observer would conclude that the parties did not obtain a fair, impartial, and neutral hearing. State v. Bilal, 77 Wn.App. 720, 722, 893 P.2d 674 (1995), review denied, 127 Wn.2d 1013 (1995).
B. Trial Court Admonitions
Lavalsit argues that the trial court's comments to Lavalsit and Upsahl during their testimony demonstrated the court's bias against the defense. He cites to several instances in which the trial court sua sponte directed Lavalsit or Upsahl to restrict their answers to the questions asked and to refrain from speaking over counsel or attempting to answer counsel's questions before counsel had finished asking the question. He also cites to one instance where the trial court directed Lavalsit, who had been standing so he could point to an exhibit, to sit down when the exhibit was no longer relevant to his testimony.
The trial court's instructions to the defense witnesses did not indicate any bias; the court was merely trying to ensure a proper record and an orderly proceeding. Additionally, the trial court gave similar admonitions to some of the State's witness. Lavalsit fails to establish bias on this ground.
C. Balanced Instructions
Lavalsit further asserts that the trial court's failure to provide "an equal weight of instructions to the jury on the laws that must be applied to the facts or evidence heard from the plaintiff" demonstrated bias. SAG Additional Ground 3. He contends that jury instructions 6, 7, 8, 9, and 10 "plac[ed] the weight of the jury's focus on the deliberation of laws against the defense and weighs toward a guilty verdict against the defendant." SAG Additional Ground 3.
Instruction 6 defines third degree assault as charged.
Instruction 7 defines assault.
Instruction 8 defines intent.
Instruction 9 defines physical injury.
Instruction 10 is the to-convict instruction for third degree assault.
These instructions were necessary to define the crime, to define the meaning of some of the more technical terms, and to set out the elements that the jury had to find. The instructions were standard pattern instructions. The trial court also clearly instructed the jury that it was the State's burden to prove each element of the crime. These instructions do not suggest any trial court bias and this argument is clearly without merit.
To the extent Lavalsit may also be attempting to argue that the trial court's jury instructions and admonition to the defense witnesses conveyed the trial court's personal attitude about the merits of the case, that argument has no merit. Neither the trial court's attempts to control its courtroom nor the jury instructions conveyed the court's attitude about the merits of the case. See Egede-Nissen v. Crystal Mountain, Inc., 93 Wn.2d 127, 140, 606 P.2d 1214 (1980); State v. Foster, 91 Wn.2d 466, 481, 589 P.2d 789 (1979).
III. Effective Assistance of Counsel
Lavalsit next asserts that he received ineffective assistance of counsel because his counsel failed to adequately cross-examine witnesses about the location of Kerman's car. Additionally, in his SAG, Lavalsit asserts that he received ineffective assistance of counsel because his counsel failed to cross-examine Vonberg "to verify if [she] was performing nursing/health care duties" at the time of the assault. SAG Additional Ground 1. We disagree.
A criminal defendant claiming ineffective assistance of counsel must prove that (1) counsel's representation fell below an objective standard of reasonableness, and (2) this deficient representation prejudiced him. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). We presume that counsel was effective. State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011) (emphasis omitted) (citing State v. Kyllo, 166 Wn.2d 856, 862-63, 215 P.3d 177 (2009)). An appellant establishes prejudice by showing a reasonable probability that the result would have differed but for counsel's deficient conduct. Reichenbach, 153 Wn.2d at 130.
Lavalsit asserts that additional cross-examination would have shown that Kerman could not have seen what she testified about from where she was parked. Although there was testimony about where Vonberg and Kerman's vehicles were parked, the evidence indicated that the assaultive contact occurred before either woman had reached her vehicle. Thus, any failure of counsel to further cross-examine witnesses about the location of Kerman's vehicle was not prejudicial and this argument fails.
Vonberg testified that the assault occurred inside the house with Kerman present; and Kerman testified that she was walking behind Vonberg when the assault occurred and that she was near Vonberg's vehicle during the rest of the incident.
Furthermore, if there was additional evidence about what Kerman could have seen from where her vehicle was parked, that evidence is outside the record. We will not address matters outside the record on appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Lavalsit further argues that his counsel failed to cross-examine Vonberg "to verify if [she] was performing nursing/health care duties" at the time of the assault. SAG Additional Ground 1. But the record contains considerable evidence that Vonberg was caring for Upsahl's mother immediately before the assault and there is nothing in the record suggesting otherwise. Thus, any additional questioning on this point was futile. Furthermore, to the extent Lavalsit suggests that there is additional evidence that could have been revealed by additional cross-examination, that claim is pure speculation. Accordingly, this argument also fails.
As we have previously noted, we will not address matters outside the record on appeal. McFarland, 127 Wn.2d at 335.
IV. Jury Instruction Challenges
Finally, in his SAG, Lavalsit asserts the evidence did not support the jury instructions defining third degree assault or the to-convict instruction for third degree assault because there was no evidence that Vonberg was performing nursing/health care duties at the time of the assault. Even assuming that Lavalsit preserved this issue for appeal and that he can challenge the instructions defining the offense with which he was charged, we disagree with his assertion. The record clearly shows that there was evidence that Vonberg was providing medical assistance to Upsahl's mother when this incident occurred. This claim is clearly without merit.
To the extent Lavalsit may be attempting to argue that there was insufficient evidence to prove this element of the offense, Vonberg's, Kerman's, and Robichaux's testimonies provided sufficient evidence to support this element. See State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010) (evidence is sufficient to support a conviction if, viewed in the light most favorable to the trier of fact's decision, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt).
Finding no error, 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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Hunt, J. Bridgewater, J.P.T.