Opinion
No. 37168-5-II.
March 31, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-1-01845-1, Serjio Armijo, J., entered December 14, 2007.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Bridgewater and Armstrong, JJ.
UNPUBLISHED OPINION
A jury convicted Dwayne Sanders of second degree assault, domestic violence. Sanders claims on appeal that the trial court erred in (1) denying his motion to dismiss after a police officer gave allegedly prejudicial testimony, and that the (2) trial court erred in refusing to include third and fourth degree assault instructions to the jury. Sanders also presents several issues in his statement of additional grounds (SAG). None of his claims have merit and we affirm his convictions.
FACTS
In the spring of 2007, Sanders was in a non-exclusive dating relationship with Angelic Goebel. Sanders did not live with Goebel, but he did have a key to her Lakewood apartment and was welcome to stay there occasionally.
In late March 2007, Sanders was staying with Goebel when they got into an argument about Sanders flirting with another house guest, Stephanie. Goebel yelled at Sanders for the flirtatious behavior and he hit her several times in the face. Sanders turned to walk away and Goebel followed him, jumping on his back. Sanders threw Goebel off of his back, scraping her back. Later, Goebel discovered that her foot was injured in the altercation, as well. The fight stopped and Goebel told Sanders to leave. Sanders would not leave, and 15-20 minutes later Goebel left the apartment with Stephanie.
None of the witnesses knew Stephanie's last name.
About 8:00 a.m., 6 hours after the incident, Goebel returned to her apartment. Sanders was outside cleaning the patio. He entered the apartment and the two spoke. Sanders suggest she take a shower and sleep. He told Goebel he would take her to the hospital to have her foot looked at after she woke up. Sanders made food for them, they showered together, and then had sex. After having sex, Sanders slept in a chair while Goebel lay in the bed, unable to sleep because of the pain from her foot. Later that same evening, Stephanie returned to the apartment. Another argument ensued between Sanders and Goebel because Stephanie brought drugs and wanted to get high with Goebel, but Sanders did not want her to. Goebel then called a friend, Brian Hausner, to take her to the hospital. She told Brian what had happened and once at the hospital, Hausner called the police.
Officer Brian Weekes interviewed Goebel at the hospital where she cooperated with questioning, told him of Sanders whereabouts, and provided him a key to her apartment. The police took photos of Goebel's facial bruising and swollen eye and then went to her apartment. Weekes arrested Sanders, without incident inside Goebel's apartment.
Goebel gave consent for the police to enter her apartment to look for Sanders.
Doctors examined Goebel's face and right eye. Goebel told the doctors someone had hit her with a fist in her eye. The computed tomography (CT) scans revealed a fracture to the inside wall of Goebel's right eye socket.
The State charged Sanders with second degree assault, domestic violence. At trial, Sanders requested that the court instruct the jury on third and fourth degree assault, as lesser included crimes. The State objected to the motion and the trial court sustained the objection. The trial court did not provide third and fourth degree assault instructions to the jury. 313. The jury convicted Sanders of second degree assault, domestic violence, as charged. This conviction was Sanders third strike offense and the trial court sentenced him to a life sentence.
Sanders now appeals.
ANALYSIS
I. Detective Larson's Testimony and Mistrial
Detective Ryan Larson testified that he conducted a portion of the follow-up investigation in the altercation between Sanders and Goebel. Larson discussed who he spoke with about the evening incident, including Hausner. When asked why he contacted Hausner for the follow-up investigation, Larson explained it was "because he gave [Goebel] a ride to the hospital after she was assaulted." Report of Proceedings (RP) at 160. Defense counsel objected to Larson's testimony as a legal conclusion and moved for a mistrial. The trial court denied the motion and the trial continued.
On appeal, Sanders argues again that Larson's testimony invaded the jury's fact finding province and that the trial court should have granted his motion for a mistrial. The State responds that the trial court did not abuse its discretion in permitting the testimony or denying Sanders motion for mistrial. We agree with the State.
A. Testimony
The trial court has considerable discretion when admitting or excluding evidence. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). Witness opinion testimony is typically limited because it invades the jury's exclusive province. Demery, 144 Wn.2d at 759. We consider the trial court's admission or rejection of testimony for an abuse of discretion. State v. Ortiz, 119 Wn.2d 294, 308, 831 P.2d 1060 (1992).
Numerous factors determine whether witness statements are impermissible opinion testimony, including the "type of witness involved, the specific nature of the testimony, the nature of the charges, the type of defense, and the other evidence before the trier of fact." City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993). "[T]estimony that is not a direct comment on the defendant's guilt or on the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony." Heatley, 70 Wn. App. at 578.
The trial court properly admitted Larson's testimony. His simple use of the word "assault" does not rise to the level of improper opinion testimony, because it contains no direct or indirect comment on Sanders' guilt. In describing his investigation, Larson explains that he contacted Hausner because he transported Goebel to the hospital after she was "assaulted." RP at 160. The focus of the exchange between the State and Larson had everything to do with explaining the steps taken during the course of the investigation and nothing to do with Larson's opinion of Sanders's guilt. In his testimony, Detective Larson does not indicate who is responsible for the assault. "The fact that an opinion encompassing ultimate factual issues supports the conclusion that the defendant is guilty does not make the testimony an improper opinion of guilt." Heatley, 70 Wn. App. at 579 (emphasis in original). Thus, the trial court did not abuse its discretion in permitting the testimony.
B. Mistrial
We review a trial court's denial of motions for a mistrial or a new trial for abuse of discretion. State v. Allen, 159 Wn.2d 1, 10, 147 P.3d 581 (2006). A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). Because the trial court properly admitted Larson's testimony, the trial court also properly denied Sanders's motion for mistrial on that basis.
II. Jury InstructionsSanders argues that the trial court erred by rejecting his instructions on third and fourth degree assault. The State responds that the trial court acted appropriately in omitting the instructions. We agree with the State.
We review the trial court's decision to reject a party's jury instruction where the refusal is based on a matter of fact for abuse of discretion. State v. Picard, 90 Wn. App. 890, 902, 954 P.2d 336 (1998). A criminal defendant is entitled to jury instructions that accurately state the law, permit him to argue his case theory, and are supported by the evidence. State v. Staley, 123 Wn.2d 794, 803, 872 P.2d 502 (1994).
An instruction on a lesser included offense is proper when, "each of the elements of the lesser [included] offense [are] a necessary element of the offense charged . . . [and] second, the evidence in the case support[s] an inference that the lesser crime was committed." State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The first prong of this test is met if the offense is a lesser included offense or an inferior degree offense. The second requirement, the factual prong, is met "if the evidence would permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of the greater." State v. Fernadez-Medina, 141 Wn.2d 448, 456, 6 P.3d 1150 (2000) (quoting State v. Warden, 1336 Wn.2d 559, 563, 947 P.2d 708 (1997)).
At trial, the parties agreed that the first prong of the Workman test was not at issue. They disagreed, however, as to the second prong. The State argued that the evidence presented at trial did not support that a third or fourth degree assault occurred.
Instructions for second degree assault required that to convict Sanders, the State must prove beyond a reasonable doubt that Sanders "intentionally assaulted Angelic Goebel . . . thereby recklessly inflicting substantial bodily harm." Clerk's Papers (CP) at 115. To prove that a third or fourth degree assault occurred, there must have been sufficient evidence that the jury could believe Goebel's facial injuries were caused by something other than by an intentional blow to the face by Sanders. Defense counsel suggested to the trial court that the jury could believe the injuries occurred when Sanders threw Goebel from his back. As the trial court properly noted, however, there was no evidence presented indicating that Goebel's face struck the wall during that incident. Goebel testified that she suffered a scraped back as a result of being thrown by Sanders, but that her facial injuries were a result of being punched several times.
The trial court noted specifically, "so far from what I can tell, he hit her on the face. That's it. He flung her, got her off his back. There's no testimony that she hit her face." RP at 313.
The jury heard no testimony indicating Goebel's facial injuries were caused by something other than Sander's fists. Because the evidence at trial did not support the inclusion of third and fourth degree assault instructions, the trial court properly refused to include them.
Additionally, however, "[w]here acceptance of the defendant's theory of the case would necessitate acquittal on both the charged offense and the lesser included offense, the evidence does not support an inference that only the lesser was committed." State v. Speece, 56 Wn. App. 412, 419, 783 P.2d 1108 (1989) (citing State v. Rodriguez, 48 Wn. App. 815, 819-20, 740 P.2d 904 (1987)). Even if evidence had supported the lesser included jury instructions, the trial court still, should not have given them. Sanders basic argument was that there was no assault. At no time did Sanders admit responsibility for any of Goebel's injuries. Accepting Sanders theory that Goebel's facial injuries occurred when he flung her off his back — in his own defense — would not necessarily make a third or fourth degree assault conviction more likely than a second degree conviction. Instead, it would likely necessitate acquittal on all charges as Sanders acted to protect himself. Under Speece, this analysis supports the trial court's decision to exclude the instructions. 56 Wn. App. at 419.
III. SAG Issues
A. Double Jeopardy
Sanders claims that protections against double jeopardy were violated, though it is not clear exactly how. His complaint seems to revolve around the city of Lakewood dismissing a fourth degree assault charge and Pierce County then charging him with second degree assault. The prohibition on double jeopardy protects against multiple punishments for the same offense. State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995) (citing Whalen v. United States, 445 U.S. 684, 688, 100 S. Ct 1432, 63 L. Ed. 2d 715 (1980)). Since Sanders has not been punished twice for the same offense, no violation has occurred.
B. Speedy Trial
In his SAG, Sanders argues that the trial court violated his right to a speedy trial. Washington's time-for-trial rule, CrR 3.3, generally requires the State to begin an incarcerated criminal defendant's trial within 60 days of arraignment; if not, the trial court will dismiss the case with prejudice. CrR 3.3(c)(1). There are, however, exceptions to this rule.
The decision to grant or to deny a motion for a continuance rests within the trial court's sound discretion, which we will not disturb absent "a clear showing" that the trial court's decision is "manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
Here, the record demonstrates that the trial court agreed to continue the trial on several occasions because defense counsel was in trial and because the parties were not done interviewing witnesses. Despite the fact the Sanders refused to sign, defense counsel agreed to the motions for continuance and it does not count towards the 60 day time for trial. State v. Greene, 49 Wn. App. 49, 58, 742 P.2d 152 (1987). The grant of a continuance in this situation is well within the trial court discretion, and here the trial court properly used that discretion.
C. Ineffective Assistance of Counsel
Sanders argues that he received ineffective assistance of counsel. He does not however, indicate how or why. We will not consider a defendant's SAG if it "does not inform the court of the nature and occurrence of alleged errors." RAP 10.10(c). Because Sanders has not provided us with sufficient information to consider this issue, we will not review it.
D. Prosecutorial Misconduct and Right to Confront Witnesses
Sanders claims that the prosecutor committed misconduct by "fail[ing] to present [Goebel's] past medical records that would prove that there was no substantial bodily injury caused by Mr. Sanders." SAG at 5. Further, Sanders claims that his constitutional right to confront witnesses against him was violated because his "subpoena demands were ignored by his appointed counsel and he did not have [a] compulsory process for obtaining witnesses in his favor." SAG at 6. The record contains no information on either of these issues. Since we cannot hear matters outside the record on appeal, we decline to consider these arguments. State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995).
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, J. and ARMSTRONG, J., concur.