Opinion
No. 34353-3-II.
March 20, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-03983-5, Bryan E. Chushcoff, J., entered January 27, 2006.
Counsel for Appellant(s), Reed Manley Benjamin Speir, Attorney at Law, University Place, WA.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Tacoma, WA.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Bridgewater and Armstrong, JJ.
A jury found William Louis Matthews (1) guilty of Count I, second degree assault of Angela Hicks; (2) not guilty of Count II, first degree kidnapping, but guilty of the lesser included offense of unlawful imprisonment; (3) guilty of Count III, first degree unlawful possession of a firearm (9 mm semi-automatic pistol); and (4) guilty of Count IV, first degree assault of Wanda Wilson with intent to inflict great bodily harm. The jury also entered a special verdict finding Matthews had a firearm when he committed Counts I and II. The trial court sentenced Matthews to 354 months.
On appeal, Matthews raises two issues: First, that insufficient evidence supports the jury's verdict finding him guilty of the first degree assault of his former girl friend, Wilson (Count IV). And second, that he was denied a fair trial when Hicks, a bartender, testified that she had ejected Matthews from the Golden West Saloon because she believed Matthews had assaulted her friend, Wilson, in an unrelated incident. Because substantial evidence supports the jury's verdict, including that Matthews's assault on Wilson left her hearing impaired, and because the trial court did not err in admitting Hicks's testimony for the limited purpose of establishing Matthews's motive for assaulting Hicks, there was no error and we affirm.
In his statement of additional grounds, RAP 10.10, Matthews asserts that the evidence was insufficient, he was denied a timely trial under CrR 3.3, and he challenges the jury instructions on Count I.
DISCUSSION
The facts are known to the parties and will be repeated here only when necessary to explain our decision.
Sufficiency of the Evidence Matthews argues that there was insufficient evidence to support the jury's verdict on Count IV, first degree assault of Wilson. Specifically, Matthews contends the State's evidence presented was insufficient to prove that the force he used to assault Wilson was likely to produce "great bodily harm or death." Br. of Appellant at 9. We disagree.
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). In a criminal case, we draw all reasonable inferences from the evidence in favor of the State and interpret it most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385 (1980). We do not review credibility determinations as they are for the trier of fact. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
To convict Matthews of first degree assault of Wilson, the State was required to prove the following elements beyond a reasonable doubt:
(1) That on or about 11th day of August, 2005, the defendant assaulted Wanda Wilson;
(2) That the assault was committed by a force or means likely to produce great bodily harm or death;
(3) That the defendant acted with intent to inflict great bodily harm; and
(4) That the acts occurred in the State of Washington.
Clerk's Papers (CP) at 118.
The trial court defined "great bodily harm" in Jury Instruction 26. This definition mirrors RCW 9A.04.110(4)(c). "Great bodily harm" means "bodily injury that creates a probability of death, or which causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ." CP at 117.
Determining whether the force Matthews used was likely to cause great bodily harm is a jury question. State v. Pierre, 108 Wn. App. 378, 384-85, 31 P.3d 1207 (2001) (kicking alone can constitute force or means likely to produce death or great bodily injury). In Pierre, Division One held that a jury "may consider the manner in which the defendant exerted the force and the nature of the victim's injuries to the extent that it reflects the amount or degree of force necessary to cause the injury." 108 Wn. App. at 385.
In Pierre, the court quoted the California Appellate Court to further explain its finding:
It is not essential to a conviction of such charge that the victim be held over a blazing furnace or be fired upon with an atomic weapon. The stroke of a fist or the kick with a shoe has invalided many a man or caused him to go into decline, or to suffer neurasthenic disorders for his remaining years. But whether the blow of a fist or the kick of a shod foot was of such force as was likely to produce great bodily injury was a question for the jury.
108 Wn. App. at 384-85 (quoting People v. McCaffrey, 118 Cal. App. 2d 611, 616-17, 258 P.2d 557 (Cal.Ct.App. 1953).
Wilson testified that she went out with some friends in Tacoma and Federal Way on August 11, 2005. Matthews was waiting for her when she got home and began to assault her as soon as she arrived. He smacked her on the face so hard it caused her blood to spatter on the inside portion of the front door. Matthews also pulled off her clothes, ripping her panties as he continued to beat her with his hands, fists, and a cell phone charging cord. Wilson testified that the beating lasted for at least an hour and, as a result, she sustained a black eye; cuts in several places on her head; red marks; and bruises all over her arms, legs, and stomach. In addition, her eardrums were "gone" because Matthews hit her on her ears with his fists. 5 Report of Proceedings (RP) at 272. She also testified that her head was also bleeding "pretty bad," 5 RP at 276, and that blood from her injuries was on her bed sheets, bedroom carpet, on the walls and ceiling, as well as on the inside of the front door.
Wilson testified that she had initially suspected Matthews beat her with his belt and relayed that to police and her treating physician. Wilson testified that Matthews later told her that he used a phone charging cord in the assault. She learned this during their October 28, 2005 recorded inmate phone conversation while he was in jail.
At around 6 a.m., wearing only pajamas and a t-shirt, Wilson fled to her parents' house in Lakewood. Detective Gene E. Miller investigated the assault. Miller testified that when he arrived at Wilson's parents' home, Wilson was crying, disheveled, her clothing was bloody, and her eyes were swollen. Wilson also complained of having difficulty with her hearing and was able to see out of only one eye. She had bumps on her head and many marks on her body consistent with some type of belt or whip. Wilson told Miller that Matthews had assaulted her. After seeing Wilson's condition, Miller phoned for an ambulance to transport her to St. Clare's Hospital.
Detective Miller also investigated the August 5 assault on Hicks. He interviewed Wilson about that incident on August 9, 2005.
Dr. Ian Cowan treated Wilson at St. Clare's Hospital. At trial, he detailed Wilson's injuries and testified that he ordered a computed tomography (CAT) scan to determine the extent of any brain injuries because:
A kick or a blow delivered in a vulnerable area of the head, for example, around the temples, can cause a blood vessel to rupture inside the skull and that can result in a brisk episode of bleeding inside the brain, which can compress the brain, and cause the death of the individual. Likewise, kicking can do exactly the same thing.
6 RP at 415.
Wilson also testified that she continued to have trouble hearing out of her left ear and that she still had a few scars on her body. On this evidence, any rational trier of fact could find beyond a reasonable doubt that Matthews assaulted Wilson in a manner likely to produce great bodily harm and was guilty of first degree assault. Matthews's claim that the evidence is insufficient to support the jury's verdict lacks merit.
During oral argument, Matthews argued that Wilson's failure to seek prompt medical attention, not his hour-long assault, was the cause of Wilson's hearing loss and that he could not be found to have inflicted great bodily harm. We disagree for two reasons. First degree assault does not require that great bodily harm result from the assault, only that the assault is committed with such force that it is likely to produce great bodily harm. RCW 9A.36.011(1)(a). Second, absent evidence of the supervening intervening negligence of a third party proximately causing an injury, Matthews is responsible for the injuries resulting from his assault. See, e.g., State v. Perez-Cervantes, 141 Wn.2d 468, 6 P.3d 1160 (2000); State v. Little, 57 Wn.2d 516, 358 P.2d 120 (1961).
ER 404(b) Evidence
Matthews next argues that the trial court denied him a fair trial when it allowed Hicks's "spontaneous revelation on the witness stand" that she refused to serve him and kicked him out of the Golden West Saloon bar because he had previously beat up her friend, Wilson. Br. of Appellant at 11. Matthews contends that under ER 404(b), Hicks's statements were a "serious irregularity" because the State had not made a prima facie showing that Matthews had assaulted Wilson before. Br. of Appellant at 11. We disagree.
Before trial, the defense filed a motion in limine under ER 404(b) to exclude evidence that on August 4, 2005, Hicks had ejected Matthews from Tacoma's Golden West Saloon. ER 404(b) prohibits the admission of evidence to show the character of a person to prove that the person acted in conformity with his character on a particular occasion. State v. Everybodytalksabout, 145 Wn.2d 456, 466, 39 P.3d 294 (2002). Evidence of prior bad acts, including acts that are merely unpopular or disgraceful, is presumptively inadmissible. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003); State v. Halstien, 122 Wn.2d 109, 126, 857 P.2d 270 (1993). Although inadmissible to prove criminal propensity, evidence of prior acts may be admissible for other purposes, including proof of motive, intent, and the circumstances surrounding the alleged crime. State v. Monschke, 133 Wn. App. 313, 335, 135 P.3d 966 (2006).
We review the trial court's admission of evidence for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). "A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds." State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (quoting Havens v. C D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994)), review denied, 133 Wn.2d 1019 (1997). The appellant bears the burden of proving abuse of discretion. State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39 (1982), rev'd on other grounds, 99 Wn.2d 538 (1983).
Here, following a hearing on Matthews's motion in limine to determine the admissibility of various pieces of evidence, including Hicks's testimony, the trial court ruled that Hicks's testimony that she had ejected Matthews from her workplace was admissible to establish animosity between Matthews and Hicks. It reasoned that the evidence was probative of Matthews's motive for unlawfully imprisoning Wilson (Count II) and forcing her to get in the car and direct him to Hicks's house where he committed second degree assault against Hicks (Count I) by firing a gun into the air, causing Hicks and her companion to dive to the floor to avoid being shot (firearm enhancement). The trial court properly ruled that evidence that Hicks ejected Matthews from her workplace because she believed that Matthews had assaulted Wilson was more probative of his motive for deciding to assault Hicks on August 5, 2005, than it was prejudicial to his trial for assaulting Wilson on August 11, 2005.
Although we find Hicks's testimony admissible, we note that the erroneous admission of such evidence is not grounds for reversal unless it results in prejudice to the defendant. Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983). Where the error is from the violation of an evidentiary rule, we apply the rule that the error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred. Halstien, 122 Wn.2d at 127. The improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole. Nghiem v. State, 73 Wn. App. 405, 413, 869 P.2d 1086 (1994).
Here, the fact of an assault and the identity of the assailant were not contested. Wilson testified to the nature and extent of Matthews's August 11 assault on her. Any undue prejudice from Hicks's testimony that she had ejected Matthews from the bar because he was looking for trouble and she believed that Matthews had assaulted Wilson on an earlier occasion, could not have affected the outcome of his trial for assaulting Wilson, and error, if any, was harmless. Statement of Additional Grounds (SAG)
RAP 10.10.
In his SAG, Matthews asks this court to dismiss all the charges. Matthews challenges his conviction of second degree assault on Hicks with a deadly weapon arguing that because there was no physical contact between Matthews and Hicks and her companion, Erik Fanshier, and neither victim saw him fire the gun, that no assault was committed. But an assault occurs when one puts another in apprehension of harm whether or not the actor actually intends to inflict or is incapable of inflicting that harm. State v. Frazier, 81 Wn.2d 628, 631, 503 P.2d 1073 (1992). Here, Matthews called Hicks, threatening to harm her with a gun, and several minutes later, Wilson called Hicks and told her that they (Matthews and Wilson) were outside her house. Soon after Wilson's call, Hicks heard two shots fired. She and Fanshier threw themselves on the floor and called 911. This evidence is sufficient to prove that Matthews assaulted Hicks. State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995).
Matthews also asserts that the second degree assault charge was excessive and that reckless endangerment is a more appropriate charge for his conduct. We disagree. The evidence was sufficient to prove second degree assault beyond a reasonable doubt. Moreover, Matthews did not ask that the jury be instructed on the crime of reckless endangerment nor did he object to the trial court's giving of a drive-by shooting jury instruction and he has failed to preserve this issue for appeal. RAP 2.5(a); State v. Scott, 110 Wn.2d 682, 685-86, 757 P.2d 492 (1988).
Likewise, Matthews has waived any claim that he was denied his right to a timely trial under CrR 3.3. CrR 3.3(d)(3) requires that any objection must be filed within 10 days of notice of the trial date. The motion "shall be promptly noted for hearing by the moving party. . . . A party who fails, for any reason, to make such a motion shall lose the right to object that a trial commenced on such a date is not within the time limits prescribed by this rule." CrR 3.3(d)(3) (emphasis added). Matthews did not object to the timeliness of his trial below. Moreover, we note that Matthews filed at least one of the continuance motions, and joined with the State in at least one request for a continuance.
In addition, Matthews has not argued that his ability to present a defense was materially prejudiced by the trial court's decisions to continue the trial. Thus, his constitutional speedy trial rights were not violated.
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.
BRIDGEWATER, P.J., ARMSTRONG, J., concur.