Opinion
No. 64631-1-I.
September 20, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for King County, No. 09-2-30674-5, Julie A. Spector, J., entered November 18, 2009.
Affirmed by unpublished opinion per Ellington, J., concurred in by Leach, A.C.J., and Grosse, J.
John Thompson appeals from his conviction of assault in the second degree. Thompson contends that (1) the trial court erred by admitting evidence that Thompson is a cage fighter and (2) the prosecutor engaged in misconduct when he used that evidence for a purpose other than that for which the evidence had been admitted. Finding no error, we affirm.
I
On May 16, 2009, John Thompson struck Michael Knigge twice in the face. Knigge suffered a crushed orbital socket, a cut on the face that required eight stitches, and a crack on one of his front teeth, which he eventually lost. Thompson was charged with one count of assault in the second degree, in violation of RCW 9A.36.021(1)(a).
Evidence presented at trial revealed that the assault occurred at a residence owned by Knigge's mother, Carol. Niki Macheta rented a room from Carol, and after obtaining Carol's permission, Macheta invited Thompson and his daughter to stay the night there. Macheta and Knigge had formerly shared an intimate relationship which terminated a few months prior to the assault.
Testimony at trial described their prior relationship as "friends with benefits," meaning that they had sexual intercourse but were not in a formal dating relationship.
On the night of the assault, Thompson drank alcohol at a wedding reception at the Knigge residence. Thompson stated that he had consumed three to five drinks. Thompson put his daughter to bed on the couch on the first floor. After checking on her a few times, Thompson went to bed in Macheta's room on the second floor, which was just across the hall from Knigge's room.
Knigge arrived home toward the end of the evening, after attending a separate party where he had consumed alcohol. Knigge observed Thompson and his daughter in the house a few times. After Thompson and Macheta had gone to bed, Knigge went to his room and began playing music very loudly on the stereo. Macheta asked him to turn down the music but Knigge refused. Knigge testified that Macheta had angered him by violating a house rule that neither Knigge nor Macheta were allowed to invite guests of the opposite sex to stay in the house.
Thompson then went to speak with Knigge. There was conflicting testimony as to what was said between Thompson and Knigge. Thompson testified that he respectfully and politely told Knigge that the music was too loud and that his daughter was sleeping downstairs, to which Knigge replied, "this is my house, I want you to leave." Thompson again asked him to turn the music down. Knigge had the same reply. Knigge, in contrast, testified that Thompson had asked him to turn it down, and that after Knigge refused, Thompson invited him to step outside and fight. Knigge testified that he told Thompson that "there's no violence in this house." The music was never turned down.
Thompson began assembling his things to leave and went outside to warm up the car and have a cigarette. He testified that he had left the front door open so that he could keep an eye on his daughter. Knigge then also went outside to the porch to have a cigarette and to call his mother, shutting the door behind him. While on the phone, Carol urged Knigge to get in her car and to get away from Thompson. Again, there was conflicting testimony as to the events that followed. Thompson testified that Knigge blocked the front door, which was closed, and told Thompson that Thompson was not going to go inside to retrieve his daughter. Thompson stated that Knigge then made a threatening gesture toward him, and that he was scared. Knigge, on the other hand, testified that Thompson was glaring at Knigge and that he again told Thompson to leave and not to look at him.
Thompson does not deny that he then struck Knigge twice in the face and that Knigge fell to the floor. Macheta tried to grab Thompson around the waist and pull him back, but she was unable to prevent him from hitting Knigge. Thompson had experience in cage fighting and wrestling. Thompson weighed about 170 pounds; Knigge weighed between 115 to 120 pounds at the time of the incident. After hitting Knigge, Thompson put his daughter in his vehicle and fled from the house.
Defense counsel moved to exclude the evidence that Thompson was a cage fighter. Defense counsel argued that the evidence would lead the jury to believe that Thompson had a special standard of care because he had engaged in cage fighting and that this would prejudice his affirmative defenses of defense of self and defense of others. The State urged the trial court to admit the evidence based on its relevancy to the issue of provocation, arguing that Knigge's knowledge of Thompson being a cage fighter was relevant to whether or not Knigge would attack Thompson. The trial court commented, "Okay. I'm not sure this is admissible. Basically, it would be offered to show the victim's state of mind, the victim's fear of the defendant. And, I need to take a look at the case law on this issue." A sidebar was later conducted and the trial court concluded that the evidence was more probative than prejudicial and admitted the evidence. Discussing the sidebar on the record, the trial court did not explain its reason for admitting the evidence but stated that it would consider a limiting instruction to the jury. Defense counsel did not submit any such instruction.
Both Macheta and Thompson testified that Thompson was a cage fighter. The prosecutor first elicited testimony from Macheta that Thompson said that he left the house because "he didn't want the police involved because he was a cage fighter and that would put him away for a long time." Defense counsel on recross-examination then asked Macheta, "Did you know whether [Thompson] was a cage fighter at the time?" to which Macheta replied, "He had talked about it the whole time he was at the reception." Both the prosecuting attorney and defense counsel questioned Thompson about cage fighting. During his testimony, Thompson stated that he had participated in four separate cage fights and described the sport as a combat sport in which wrestling, boxing, karate, and jujitsu techniques are used in an enclosed space.
In closing argument, the prosecutor described Thompson's cage fighting experience:
By Mr. Thompson's own admission, he has been a cage fighter. How many people do you know that can say that? They get into a ring made out of metal and they fight people where anything goes. Almost anything. Where people can use wrestling, boxing, karate, jujitsu. Where people try to knock out their opponent or choke out their opponent or try to submit their opponent. Where people can have broken bones from submissions that get carried away.
Would it be reasonable for any one of you to face a cage fighter? Of course not. And it's not reasonable to expect that Mr. Thompson was afraid of Michael Knigge. It's not reasonable to accept that he believed that Alyssa was in imminent danger of harm.
Defense counsel did not object during closing argument.
The jury was instructed on assault in the second degree, self-defense, and defense of others. The jury convicted Thompson of assault in the second degree.
Thompson appeals.
II
Thompson contends that the trial court erred by admitting evidence that Thompson was a cage fighter because the evidence was irrelevant and prejudicial. We disagree.
"The decision to admit evidence lies within the sound discretion of the trial court and should not be overturned on appeal absent a manifest abuse of discretion." State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997).
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401; see also State v. Rice, 48 Wn. App. 7, 12, 737 P.2d 726 (1987). Evidence that tends to prove or disprove a fact pertinent to an affirmative defense may be considered relevant at the discretion of the trial court. See City of Kennewick v. Day, 142 Wn.2d 1, 10, 11 P.3d 304 (2000) (holding that character evidence may be relevant to an affirmative defense). Although evidence that is not relevant is inadmissible, "the threshold to admit relevant evidence is very low. Even minimally relevant evidence is admissible." State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002); see also ER 402. Evidence of other crimes, wrongs, or acts is admissible for purposes "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ER 404(b).
However, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." ER 403. Unfair prejudice "`is that which is more likely to arouse an emotional response than a rational decision by the jury,'" or an undue tendency to suggest a decision on an improper basis, commonly an emotional one. State v. Cronin 142 Wn.2d 568, 584, 14 P.3d 752 (2000) (quotingState v. Gould, 58 Wn. App. 175, 183, 791 P.2d 569 (1990)).
Thompson first contends that the evidence of his cage fighting experience was not relevant to the crime charged. A person is guilty of assault in the second degree if he (1) intentionally assaults another person and (2) thereby recklessly inflicts substantial bodily harm. RCW 9A.36.021(1)(a). "[A] criminal assault requires unlawful force." State v. Acosta, 101 Wn.2d 612, 618, 683 P.2d 1069 (1984). Use of force may be lawful where the defendant validly asserts a defense of self or defense of others. RCW 9A.16.020(3). It is the long standing rule "that evidence of self-defense must be assessed from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees." State v. Janes, 121 Wn.2d 220, 238, 850 P.2d 495 (1993). The degree of force used in self-defense "is limited to what a reasonably prudent person would find necessary under the conditions as they appeared to the defendant." State v. Walden, 131 Wn.2d 469, 474, 932 P.2d 1237 (1997).
Thompson's contention notwithstanding, the evidence was relevant to proving the crime charged because it revealed that Thompson's cage fighting experience motivated his flight, and "[f]light is circumstantial evidence of guilt." State v. Baxter, 68 Wn.2d 416, 421, 413 P.2d 638 (1966). The trial court permitted Macheta's testimony in which she stated that "he didn't want the police involved because he was a cage fighter," and that he fled because the police would view his hands as "lethal weapons." This evidence both establishes his consciousness of the prohibited act and tends to establish his guilt.
In addition, the cage fighting evidence tends to establish the first element of assault by demonstrating that Thompson's punches were not accidentally inflicted. The evidence also tends to rebut Thompson's contention that his use of force was a justified response in defense of himself and his daughter; if Thompson believed that he was privileged in striking Knigge because Knigge posed a physical threat to Thompson or his daughter, Thompson would have stayed at the Knigge residence to explain his actions to the police. Further, in light of Thompson's sport fighting experience, a jury could reasonably conclude that Thompson was aware that his use of force was unjustified under the circumstances. Because the evidence may suggest that Thompson knew of the force required to defend himself without substantially hurting another person, the challenged evidence is relevant to the element of recklessness. RCW 9A.36.021(1)(a). Under ER 404(b), the trial court properly admitted evidence that Thompsons's cage fighting experience motivated his flight because the challenged evidence was pertinent to opportunity, intent, knowledge of the assault, and the absence of mistake or accident.
Thompson next contends that the trial court erred by finding evidence of his prior cage fighting experience more probative than prejudicial. Thompson is incorrect. The testimony about Thompson being a cage fighter was highly probative in that it established that Thompson had struck Knigge and that he feared legal repercussions. Furthermore, the evidence tends to establish that his use of force was reckless, as he was likely aware of the amount of force necessary to subdue a person. While the evidence may have had a tendency to depict Thompson as having a predilection toward violence, this potential prejudicial effect does not outweigh the probative value of the evidence. Moreover any resulting prejudice could have only had slight import to the jury in light of the other abundant evidence depicting Thompson as a violent man and portraying his response as unwarranted. Indeed, any evidence tending to rebut the defendant's defense is prejudicial. However, "[e]vidence is not inadmissible under ER 403 simply because it is detrimental or harmful to the interests of the party opposing its admission; it is prejudicial only if it has the capacity to skew the truth-finding process." Wilson v. Olivetti N. Am., Inc., 85 Wn. App. 804, 814, 934 P.2d 1231 (1997). While the trial court admitted evidence that had the potential to prejudice Thompson's defense, this does not constitute trial court error.
In addition to the challenged evidence, there was a significant amount of other evidence which called into question the legitimacy of Thompson's defense. First, Knigge testified that when asking Knigge to turn down the music, Thompson invited him to go outside and fight, suggesting that the defendant sought violence to solve the problem with Knigge. Second, witnesses testified that Knigge is a small man, to which the jury could have reasonably concluded that Thompson had little reason to punch Knigge with such intensity in order to defend himself or his daughter. Third, Knigge testified that while on the telephone with his mother, Carol, she urged him to leave the house and lock himself in the car, indicating that Knigge had expressed fear for his safety prior to the physical altercation. Fourth, Knigge and Macheta testified that Knigge held a cigarette in one hand and a cell phone in the other at the time that Thompson hit him, which may suggest that Knigge was not immediately preparing to harm Thompson or Thompson's daughter. Moreover, evidence was admitted that Thompson had been drinking liquor at the wedding reception; the jury may have reasonably concluded that Thompson's judgment was impaired because of alcohol consumption.
Thompson does not demonstrate how the evidence of his experience as a fighter skewed the truth by arousing an emotional response, rather than a rational decision, by the jury. The challenged evidence was relevant to the question of Thompson's flight, to his admission of guilt, and to the question of reasonable use of force. The evidence was less prejudicial than probative and the potential for prejudice was of little consequence. Thus, the trial court did not err.
III
Thompson contends that the prosecutor engaged in prosecutorial misconduct during closing argument. We disagree.
Prosecutorial misconduct arises when the State makes references to evidence outside of the record or makes appeals to passion or prejudice. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009). However, in closing argument, the prosecutor has wide latitude in drawing reasonable inferences from the evidence admitted and expressing such inferences to the jury.State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). Allegedly improper comments are reviewed in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given.State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994).
"Where improper argument is charged, the defense bears the burden of establishing the impropriety of the prosecuting attorney's comments as well as their prejudicial effect. Reversal is not required if the error could have been obviated by a curative instruction which the defense did not request. The failure to object to a prosecuting attorney's improper remark constitutes a waiver of such error unless the remark is deemed to be so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury."
State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995) (quoting Hoffman, 116 Wn.2d at 93). Reversal is required only if "there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict."State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991).
Even were we to conclude that the arguments made were improper, Thompson waived any claim of error because he failed to properly object and a limiting instruction could have addressed this issue. Gentry, 125 Wn.2d. at 640. Reversal is not warranted because the comments made do not rise to the level of flagrant misconduct. Cf. State v. Perez-Mejia, 134 Wn. App. 907, 915, 143 P.3d 838 (2006) (reversing conviction where the prosecutor urged the jury to convict "on a goal of sending a message to gangs or taking part in a mission to end violence, rather than returning a verdict based upon a consideration of the evidence properly admitted in the case"). The trial court did not err.
Affirmed.
We concur.