Opinion
No. 34678-8-II.
February 24, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-03828-6, John R. Hickman, J., entered April 14, 2006.
Remanded by unpublished opinion per Houghton, J., concurred in by Van Deren, C.J., and Penoyar, J.
In State v. Lindholm, noted at 137 Wn. App. 1063, 2006 2623927 ( Lindholm I), we affirmed a trial court order granting Chris Lindholm a new trial based on evidentiary error. We relied on State v. Cook, 131 Wn. App. 845, 129 P.3d 834 (2006). The State petitioned for review by the Supreme Court. That court granted review and remanded to our court for us to reconsider our opinion in light of State v. Magers, 164 Wn.2d 174, 189 P.3d 126 (2008) ( Magers II). After reviewing Magers II, we remand to the trial court to enter judgment and sentence on the jury's previous convictions.
FACTS
We repeat the facts set forth in our unpublished Lindholm I opinion.
Lindholm and his wife, Jill, were married for more than 27 years. Around 1999 or 2000, Lindholm was diagnosed with an illness. He could not work, the family lost their home, and the marriage became strained. They briefly moved to Oregon but stayed only a week. When they returned, they moved into separate residences and had no contact for about three months.
For clarity, we refer to Jill Lindholm as Jill, intending no disrespect.
On August 3, 2005, Jill contacted Lindholm to help her fix the brakes in her van. They went to dinner together, and she told him that she was seeing somebody else. Lindholm became upset and left the restaurant, sitting in the car. They then drove her van to Lindholm's house and she stayed the night.
The next day, Lindholm drove Jill back to her apartment. While she showered, he listened to her answering machine and heard a message from the man she was dating. She confessed to Lindholm that the man she was seeing was his friend, who had been the best man in their wedding.
Jill later gave conflicting versions of what happened next. On the day of the incident, she told police officers that she and Lindholm had argued at her home and that he had held a gun to his head, threatening to shoot them both. She ran out of her apartment and he chased her, demanding that she come back. He forced her to drive him to Puyallup in his car while he kept the gun in his lap, pointed at her. He told her if she stopped and got out of the car, he would shoot her.
When they stopped for fuel at a gas station, Jill went inside the store with Lindholm's permission. She told the clerk that her husband had a gun and was threatening to kill her. After paying for the gas and exiting, she returned to the store and asked the clerk to call the police because her husband was holding her at gunpoint.
Jill signed a statement under penalty of perjury that set forth this version of events and additionally stated, "I feel very confident to tell you that I truly believe my husband Chris Lindholm would have killed me or assaulted me on August 4th, 2005." III Report of Proceedings at 110, 118.
But when Jill spoke with a defense investigator about three months after the incident, she denied that Lindholm threatened to kill her, claiming instead that he only threatened suicide. She admitted that he threatened to kill her at one point during the drive, but she denied that he held her against her will or pointed a gun at her. She claimed that when they got to the gas station, she asked the clerk to call the police because Lindholm was smoking a cigarette at the pump and she was afraid he was going to kill himself and blow up the gas station.
The cashier called the police and the store manager locked Jill in the office. Lindholm entered the store looking for her and headed into the back, saying, "I want my wife." III Report of Proceedings at 168. He was yelling and using profanities. When the police arrived, Lindholm left the store.
Lindholm walked across the parking lot, passing the police officers. He did not respond to their directions to stop and, instead, ran toward a nearby apartment complex. Police officers pursued him on foot and saw him make some furtive movements, as though to pull something out of his right pocket. When an officer confronted him, Lindholm ran straight at the officer. He held what appeared to be a black firearm in his hand. The officer determined that the object was a black hat and did not fire at Lindholm.
Lindholm ran at the officer as if to tackle him and the officer struck him in the head with his gun. Lindholm continued to lunge toward the officer, trying to grab him. The officer struck Lindholm two more times in the head and managed to subdue him to place him under arrest. When Lindholm was handcuffed, the officer searched him and found a glass pipe for smoking methamphetamine in his pocket. Police later recovered a gun from some brush near the apartment complex.
The State charged Lindholm with first degree kidnapping, second degree assault, and felony harassment against Jill. All three charges included domestic violence and firearm enhancements. The State also charged him with third degree assault for attacking the police officer and possession of drug paraphernalia.
A jury heard the case. At trial, Jill denied that her sworn statement was true and explained that she was under the influence of drugs and alcohol when she spoke to the police. She claimed that she gave the written statement because she was mad at Lindholm and did not realize what the consequences would be. She denied changing her story to protect Lindholm and claimed that her statement to the defense investigator was a more accurate version of events.
As a result of Jill's inconsistent statements, the State moved to admit evidence of Lindholm's prior acts of domestic violence against her. The evidence concerned four incidents in April 2005, when Lindholm physically assaulted her. The trial court granted the motion, finding that under State v. Grant, 83 Wn. App. 98, 920 P.2d. 609 (1996), the prior incidents were admissible to assess Jill's credibility. Lindstrom made a continuing objection to the evidence and proffered a limiting instruction, which informed the jury that it could consider the evidence only for the limited purpose of assessing Jill's credibility. The State did not object to the instruction and the trial court gave it.
The jury convicted Lindholm on all counts and enhancements. About one month after the trial, we decided Cook and held that prior acts of domestic violence may not be considered for the general purpose of assessing the witness's credibility. 131 Wn. App. at 851. Relying on Cook, Lindholm moved for a new trial. The trial court granted the motion as to the first three charges, finding that under Cook it erred in admitting the prior bad acts for the sole purpose of evaluating Jill's credibility.
ANALYSIS
Lindholm did not cross-appeal hence there are no assignments of error regarding the trial for us to address.
In Lindholm I, the trial court and this court reviewed Cook and Grant, which both held that previous acts of domestic violence under ER404(b), which generally prohibits evidence of other crimes, wrongs, or acts to establish action in conformance with a bad character, were nonetheless admissible. Cook, 131 Wn. App. at 851; Grant, 83 Wn. App. at 105; State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
In Grant, the court explained that evidence of previous assaults on the victim were admissible to allow the jury an opportunity to assess the victim's credibility. 83 Wn. App. at 100-01. It noted that the domestic violence history between Grant and the victim could help the jury understand why the victim met Grant, despite a no contact order in place, and why the victim gave conflicting comments. Grant, 83 Wn. App. at 107-08.
In Cook, we held that ER 404(b) allowed evidence of prior acts of domestic violence to evaluate the victim's state of mind at the time of the inconsistent act, but not for the general purpose of assessing a victim's credibility. 131 Wn. App. at 851. As a result, we reversed Cook's third degree assault conviction against his girl friend and remanded for a new trial. Cook, 131 Wn. App. at 854.
In deciding Lindholm I, we, like the trial court, relied on Cook. Thus, we turn to a review of Magers II as ordered by our Supreme Court. We begin by reviewing our Magers opinion. State v. Magers, noted at 134 Wn. App. 1061, 2006 WL 2623927 ( Magers I).
We relied on Cook in deciding Magers I and held that the trial court erred in admitting evidence of prior acts of domestic violence by Magers against the victim, his girl friend, for witness credibility purposes.
On review of Magers II, our Supreme Court addressed the admissibility of prior acts of domestic violence and explained the differences between Grant and Cook, noting that
[t]he State relie[d] on State v. Grant, 83 Wn. App. 98, 920 P.2d 609 (1996), to support its contention that evidence of prior acts of violence is admissible, in a criminal case where domestic violence is alleged, in order to assist the jury in assessing the victim's credibility. In Grant, the crime victim changed her story after initially denying that she was assaulted by the defendant. The trial court admitted evidence of the defendant's prior assaults on the victim under ER 609(a). On appeal, Division One of the Court of Appeals held that the evidence was admissible under ER 404(b), reasoning that evidence of prior acts of violence toward the victim helps the jury assess the credibility of the victim at trial and understand why the victim told conflicting stories. 164 Wn.2d at 184-85. Our Supreme Court then explained that in Magers I, we relied upon a decision of Division Two of the Court of Appeals, Cook, 131 Wn. App. 845, 129 P.3d 834, with regard to the admission of evidence under ER 404(b). In Cook, the court indicated that evidence of past acts of violence by the defendant toward the victim is admissible to assess the victim's state of mind only. . . . Division Two agreed with the reasoning of Division One in Grant that a defendant's prior acts of domestic abuse against the alleged victim are admissible under ER 404(b), but only "to [assist the jury in assessing] the victim's state of mind at the time of the inconsistent act," not "for the generalized purpose of assessing the victim's credibility." Cook, 131 Wn. App. at 851. The court explained that instructing the jury to assess the evidence in terms of the victim's credibility would put emphasis on the husband's prior conduct, suggesting that it is more likely that he had a propensity to act violently against the victim. The court went on to say that if the jury is instructed to assess the evidence in terms of the victim's state of mind, the jury would focus on the state of mind rather than the defendant's propensity to abuse the victim. The Court of Appeals' decision here was consistent with the decision in Cook, the court indicating that the evidence of prior domestic violence is admissible only to enable the jury to assess the victim's state of mind, not her credibility.
164 Wn.2d at 185. Our Supreme Court then held that it "agree[d] with the rationale set forth by the court in Grant, at least insofar as evidence of prior domestic violence is concerned." Magers II, 164 Wn.2d at 185. It went on to recite from Tegland's discussion of "the admission of such evidence in his evaluation of Grant":
"[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.'"
Magers II, 164 Wn.2d at 186 (quoting 5D Karl B. Tegland, Washington Practice: Courtroom Handbook on Washington Evidence ch. 5, at 234 (2007-08)) (alternations in original) (internal quotation marks omitted). Our Supreme Court then adopted Tegland's rationale. It held that "prior acts of domestic violence involving the defendant and the crime victim are admissible in order to assist the jury in judging the credibility of a recanting victim." Magers II, 164 Wn.2d at 187.
At Lindholm's trial, the State sought to admit evidence of Lindholm's prior acts of domestic violence because Jill gave inconsistent statements. The trial court, relying on Grant, admitted the evidence to allow the jury to assess Jill's credibility. The Magers II decision supports the trial court's reasoning. Thus, the remedy is to remand to the trial court to enter judgment and sentence on the jury's previous conviction.
Remanded.
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.
VAN DEREN, C.J. and PENOYAR, J., concur.