Opinion
No. 60135-1-I.
July 21, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-1-00294-1, Harry J. McCarthy, J., entered June 1, 2007.
Affirmed by unpublished per curiam opinion.
James Webb appeals his convictions for felony and misdemeanor violations of domestic violence no contact orders, contending that the State lost or destroyed material exculpatory evidence, and that the trial court erroneously refused to instruct the jury on defense of property and improperly admitted evidence of prior bad acts. He also challenges his misdemeanor conviction on statutory grounds and contends that the trial court improperly calculated his offender score. Finding no reversible error, we affirm.
FACTS
Although a Kitsap County Superior Court domestic violence no contact order signed December 13, 2006 prohibited James Webb from having any contact his wife Christine Webb, they continued living together. Webb and Christine planned to meet for dinner on January 4, 2007, but Webb did not show up. Later that evening, Christine located Webb at the Crescent Lounge in Seattle. While James Webb was sitting at the bar with another woman, Christine came in and confronted him. Christine shouted at Webb and left the bar. Webb followed her outside.
At trial, Shane Hall testified that as he was checking identifications (IDs) at the door of the Crescent Lounge on January 4, a woman barged past him without stopping to show her ID. Hall went into the bar to tell the bartender to check her ID and noticed that the woman was yelling at a man seated at the bar. As he returned to the door, Hall saw the woman run out of the bar and get into a car parked outside. The man also came out, opened the car door and pulled the woman out. Hall testified that the man then threw the woman back and forth from car to car, hitting her in the chest area as she screamed. Patrons from the bar separated the two right before the police arrived.
Edward Carrel testified that he and his fiancée Stacie Tarr were walking down the street across from the Crescent Lounge when he saw a man struggling with the door of a car parked on the street. Carrel said that he watched a woman emerge from the driver's seat of the car and begin yelling at the man. The man then lunged forward, grabbed the woman and threw her against the SUV parked behind them. The two struggled until patrons from the Crescent Lounge separated them. The man then got into the car and attempted to drive away. Carrel waved to an approaching police car, and informed the officer that he should stop the car.
Tarr testified that as she and Carrel were walking home, she heard angry shouting and swearing between a man and a woman. When she looked toward the Crescent Lounge, she saw a man shouting at a woman as the woman ran to get into a car and start it. The man ran to the car, pulled out his keys and unlocked and opened the door. The woman struggled to keep the door closed but eventually he got it open and pulled her out of the car. The man then grabbed the woman and slammed the side of her face into the hood of the SUV behind them three or four times. As Tarr called 911 on her cell phone, she saw patrons from the Crescent Lounge pull the two apart. The man got into the car and tried to drive away as Tarr and Carrel hailed an approaching police car.
Christine testified that after waiting over two hours for Webb to meet her, she went to find him. Webb's car was parked near the Crescent Lounge. When Christine went into the Crescent Lounge, she found him seated at the bar with his arm around another woman. Christine grabbed Webb's face and turned him around to look at her. She yelled and swore at him. When he did not respond to her questions, she noticed that he "didn't look right," and concluded that he was drunk or "high on something." When she told him that she was taking his car and he could find his own way home, he began to call her names. She swore at him again and walked out.
Once outside, Christine used her keys to get into the car and start it. When Webb opened the car door with his key, Christine told him to get in and come home with her. Instead, Webb reached in, unfastened her seatbelt, pulled her out of the car, threw her against the truck parked behind them, and slammed her head into the hood of the truck two or three times. As some people pulled Webb away from her, she punched him. Christine testified that she was arrested and booked into jail for assaulting Webb, but that she was released two days later without charges. Christine also testified that Webb called her from the jail and identified his voice and her own voice on a tape recording provided by the King County jail.
The State charged Webb with a felony violation of a domestic violence court order. Because Webb called Christine from jail a few days later, the State added a charge of misdemeanor violation of a domestic violence pretrial court order signed in King County Superior Court on January 6, 2007.
Stephen Clayton testified on behalf on Webb at trial. Clayton said that he was sitting at the bar in the Crescent Lounge a few seats away from Webb. When he heard a slap or a punch, he turned to see a woman trying to slap or punch Webb's face. Clayton said that Webb then got up and left the bar as the woman followed behind him. About five minutes later, Clayton heard a commotion outside the bar and went out to investigate. He saw the woman arguing with Webb and trying to strike him while Webb held his hands up to defend his face. Clayton thought Webb "smacked her" while she was trying to hit him. Clayton also testified that when he saw the police putting handcuffs on Webb and slamming him against the hood of a car, he asked why they were using so much force. According to Clayton, the officers told him to go back into the bar or he would be arrested and he went back into the bar.
The jury found Webb guilty as charged and the trial court imposed a standard range sentence. Webb appeals.
ANALYSIS
Due Process Discovery Violation
Webb first seeks dismissal of the felony charge, alleging a violation of due process. Following jury selection, the prosecutor revealed to the defense a summary of additional information obtained from Officer John O'Neil. The prosecutor's written statement indicates that she learned of the information on the morning of what was to be the first day of trial testimony. The prosecutor's summary states:
When the defendant was pulled out of the car he was belligerent and was detained. There were people standing around and they told him that the defendant didn't do anything wrong, that it was Christine Webb who was the aggressor. These individuals stated that the defendant was the one trying to get away in the car and that Ms. Webb was physically fighting him to stop him from getting in the car. O'Neil did not get names or statements from these individuals.
Based on the additional information from Officer O'Neil, Webb moved to dismiss the felony charge, arguing that the State violated his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.2d 215 (1963). Noting that it appeared that the police may have failed "to interview individuals who may have had relevant information as to what was going on and perhaps even exculpatory information," the trial court denied the motion to dismiss because there was no showing of bad faith on the part of the officers. However, the trial court indicated it would allow the defense some latitude in cross examining Officer O'Neil.
At trial, O'Neil testified that he and Officer Shelhorse arrived at the Crescent Lounge in response to an emergency call and detained Webb as a possible suspect. O'Neil described his role as ensuring officer safety by assisting Officer Shelhorse in detaining Webb, keeping watch over Officer Ghezzi as he spoke to Christine, and containing the crowd that emerged from the bar and stood around screaming and yelling. O'Neil admitted that he heard people in the crowd saying that Webb didn't do anything wrong and that Christine caused the incident and was physically aggressive with Webb both inside and outside of the bar. O'Neil testified that he did not gather any contact information or statements from anyone in the crowd but he told the primary officer on the case, Officer Ghezzi, that there were other witnesses that he should contact. He told Officer Ghezzi he believed the witnesses had returned to the bar. O'Neil said that he watched Officer Ghezzi go into the bar to talk to witnesses.
Officer Mark Ghezzi testified that he was responsible for collecting witness information and statements. Ghezzi stated that in addition to interviewing Christine and Webb, he spoke to people on the street and in the doorway of the bar, attempting to gather statements from anyone who had witnessed the events. Officer Ghezzi testified that some people refused to speak to him and that he only recorded information in his report from the witnesses who were willing to speak to him. Officer Ghezzi did not recall Officer O'Neil telling him about other witnesses and did not recall going into the bar.
Sergeant Joel Guay testified that when he arrived at the Crescent Lounge, a crowd of 30 to 40 people were coming out of the bar to the sidewalk. Guay described his actions at the scene as managing the crowd and directing traffic. Sergeant Guay admitted that he heard people in the crowd saying that Christine had been physically aggressive to Webb while inside the bar, and stated that he directed those people to speak to the investigating officers. Defense witness Steven Clayton said that he did not see any officers come into the bar to collect information.
At the conclusion of the case, the defense renewed its motion for dismissal, alleging a Brady violation. The trial court again denied the motion, finding that the police were neither negligent nor acting in bad faith and that the testimony showed that a number of people at the scene refused to speak to Officer Ghezzi when he tried to obtain statements from them.
Due process requires the prosecution to preserve and disclose material exculpatory evidence to the defense. State v. Wittenbarger, 124 Wn.2d 467, 475, 880 P.2d 517 (1994); Brady, 373 U.S. at 87; California v. Trombetta, 467 U.S. 479, 488-89, 104 S. Ct. 2528, 81 L. Ed.2d 413 (1984). Evidence is "material" and therefore must be disclosed under Brady "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed.2d 481 (1985). Where the State fails to preserve evidence with an exculpatory value apparent before it was destroyed and of such a nature that the defendant could not obtain comparable evidence, dismissal is the proper remedy. Wittenbarger, 124 Wn.2d at 475; Trombetta, 467 U.S. at 489; Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed.2d 281 (1988). Failure to preserve "?potentially useful'" evidence does not violate due process absent a showing of bad faith on the part of the State. Wittenbarger, 124 Wn.2d at 477. Moreover, the State has no duty to expand the scope of a criminal investigation or "exhaustively pursue every angle on a case." State v. Judge, 100 Wn.2d 706, 717, 675 P.2d 219 (1984) (quoting State v. Jones, 26 Wn. App. 551, 554, 614 P.2d 190 (1980)).
Webb contends that the statements from the crowd regarding Christine's and Webb's actions constituted material exculpatory evidence and that the officers' failure to collect contact information from the people who made such statements constituted destruction of material exculpatory evidence requiring dismissal. In the alternative, he contends that because Officer O'Neil knew the evidence was exculpatory, Officer Ghezzi's failure to get contact information from people who made the comments to O'Neil constituted bad faith destruction of potentially useful evidence requiring dismissal.
While both Sergeant Guay and Officer O'Neil admitted to hearing comments from the crowd regarding Webb's and Christine's actions, neither officer could identify the individuals in the crowd who made the comments. Nor did any individual step out of the crowd to make a statement or provide contact information. Contrary to Webb's suggestion otherwise, an unidentified voice in a crowd cannot be considered a witness willing to provide evidence and an officer's failure to locate the speaker in such circumstances cannot be considered the loss or destruction of evidence. Both Sergeant Guay and Officer O'Neil testified that after hearing comments from the crowd, they addressed the crowd generally and indicated that any individual who wished to provide a statement should speak to an officer who was writing that information down. Officer Ghezzi testified that he wrote down contact information for every individual at the scene who was willing to speak to him, that he asked people standing around the scene whether they had information, and that several people refused to speak to him. Under these circumstances, Webb fails to demonstrate that the police destroyed or lost any evidence or that they failed to collect exculpatory or potentially useful evidence in bad faith. On this record, Webb cannot establish a Brady violation.
Defense of Property
Webb next contends that the trial court erred by failing to instruct the jury on defense of property. After the parties rested, the trial court refused to give a defense of property instruction, saying:
I really believe that this is a self defense case. I believe that the defense of property has really not been established by the evidence. For one, if the language that would be required for the defense of property is malicious interference. If you go to the definition of malicious interference, it really refers to an evil or vexation type of thing with respect to the property. The car would be the property involved. As the evidence came in, it seemed that Mrs. Webb went to the car, started to drive away, Mr. Webb came out and confronted her and got her out of the car. There is also evidence that although Mr. Webb was given a car as a gift and it was his car, Mrs. Webb had a key to it. They both drove the car. I just don't believe that there is sufficient evidence for there to be a defense of property instruction to be given; certainly self defense is.
A party is entitled to have a proposed jury instruction if it describes his theory of the case and is supported by sufficient evidence. State v. Williams, 132 Wn.2d 248, 259, 937 P.2d 1052 (1997). We review a trial court's refusal to give an instruction based on the facts of the case for a clear showing of an abuse of discretion. State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996) (overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997)).
The use of force toward another is not unlawful when used in preventing or attempting to prevent a "malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary." RCW 9A.16.020(3); see also, State v. Bland, 128 Wn. App. 511, 513, 116 P.3d 428 (2005) ("In defense of property, there is no requirement to fear injury to oneself.").
The only evidence presented at trial regarding the use and possession of the car was Christine's testimony. Although Christine admitted that Webb received the car as a gift while they were separated and that the title was in his name, she also testified that (1) she drove the car on a "daily basis, if not every other day;" (2) she had her own key to the car; and (3) she did not have to ask Webb's permission to use the car. Christine also testified that while she was inside the bar she told Webb that she would not let him drive home because he appeared to be drunk or high. When she was in the car and Webb told her to stop, she stopped the car and shifted it into park. When Webb opened the car door, she said, "?James, if you want to go home, just get in the car. Just get in the car.'" The record supports the trial court's decision that the evidence did not warrant an instruction on defense of property.
ER 404(b)
Webb also argues that the trial court violated ER 404(b) by allowing the State to introduce evidence of a prior domestic violence assault in 2005 against Christine and her children in order to rebut Webb's self-defense claim. We review a decision to admit evidence under ER 404(b) for abuse of discretion. State v. Dennison, 115 Wn.2d 609, 627-28, 801 P.2d 193 (1990). Under ER 404(b), evidence of prior bad acts is not admissible to show propensity. ER 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
To admit such evidence, a trial court must determine: (1) a prior bad act occurred by a preponderance of the evidence; (2) the evidence is offered for an admissible purpose; (3) it is relevant to prove an element or rebut a defense; and 4) the evidence is more probative than prejudicial. State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995).
Christine testified that when she was living with Webb and her children in Bremerton in 2005, Webb had assaulted her and her two daughters. One afternoon, as she was getting ready for work, Christine heard Webb "ranting and raving," and "screaming and hollering throughout the house" because of a disagreement with his son. Christine's two daughters, aged 16 and 13 years old, were in their bedroom. The oldest daughter shouted a profane remark at Webb. Christine heard a crash. Webb had broken down the door of the girls' room and attacked the 16-year-old. The 13-year-old jumped on Webb's back, but he stood up and threw her aside. He continued his attack on the 16-year-old, jumping on top of her, "[h]itting and just slamming her into the bed," . . . "into the wall and the bed and the frame of the bed." When Christine attempted to intervene, Webb grabbed her by the shoulders, shirt and neck and slammed her up against the wall outside the room, holding her there for a few minutes while he screamed and cursed.
Christine testified that she and the children reported the incident to the police. She and the girls suffered scratches, bruises and red marks, and Christine also testified that her "16 year old, sustained the most [injuries]. He broke a blood vessel in her eye. She had a red eye from the vessel breaking."
Christine admitted on cross examination that the case against Webb in Kitsap County based on the 2005 incident was dismissed in February 2007.
The trial court admitted the 2005 incident to rebut Webb's self defense claim. The trial court gave an oral instruction limiting the jury's consideration of the testimony before Christine testified and also included a similar written instruction at the close of the evidence. The trial court rejected defense efforts to exclude reference to the involvement of the children as significantly more prejudicial than probative, saying "it would be inappropriate to sort out and segregate the conduct that it referred to the children because it is all one part of the same incident."
Prior to Christine's testimony, the trial court orally instructed the jury:
Members of the jury, you are about to hear the evidence relating to an incident in 2005 between the defendant and his wife, Mrs. Webb. This evidence is being admitted for a limited purpose only; that is, when the conduct of the defendant in 2005 may be relevant to his claim of self defense concerning the incident of January 2007. That is the subject of this case. You are to consider the evidence of the incident of 2005. You are not to consider the evidence of the 2005 incident for any other purpose other than that.
The trial court also included the following in its written instructions: Evidence has been introduced in this case concerning an alleged prior assault by James Webb toward Christine Webb. This evidence is introduced for the limited purpose of whether it tends to rebut a claim of self-defense by Mr. Webb. This evidence, if you chose to consider it, must not be considered to prove a pattern of conduct, propensity to commit a certain act or type of act, or any other purpose except to rebut a claim of self-defense. This instruction in no way changes the prosecution's burden of proof in regards to the elements of the crime or self-defense.
Assuming without deciding that Webb's assault of Christine two years prior was relevant and admissible under ER 404(b), evidence of his alleged attack on her children and the injuries they sustained had no relevance to any question at issue in the case beyond Webb's propensity to commit violent acts.
The State also argues that Christine's testimony of the 2005 assault against her was properly admitted to explain Christine's state of mind and allow the jury to assess her credibility, given the dynamics of the relationship between Webb and Christine and her failure to report Webb's assault outside the bar in her initial encounter with the police. Compare State v. Grant, 83 Wn. App. 98, 108, 920 P.2d 609 (1996) (prior acts of domestic violence admissible to allow jury to assess victim's credibility with knowledge of dynamics of relationship marked by domestic violence); with State v. Cook, 131 Wn. App. 845, 851, 129 P.3d 834 (2006) (prior acts of domestic violence may not be considered for general purpose of assessing witness's credibility but may be admitted if jury is instructed to consider the evidence to evaluate victim's state of mind at the time of the inconsistent act). But the State still fails to articulate how the assault against the children was at all relevant in the case.
Given the undue prejudice and lack of probative value, Christine's testimony regarding Webb's prior assault on her children and the injuries they sustained was error.
But erroneous admission of ER 404(b) evidence requires reversal only if, within reasonable probability, the error materially affected the outcome of the trial. State v. Halstein, 122 Wn.2d 109, 857 P.2d 270 (1993). In addition to Christine's testimony, three witnesses testified that Webb grabbed Christine, pulled her out of the car, and threw her against another car until people from the bar separated them. The one witness who testified that Webb appeared to be acting in self-defense as Christine tried to hit him, also testified that he did not go outside for at least five minutes after Webb and Christine left and he did not see Christine get in or out of the car. Moreover, Christine admitted that she hit Webb after he was pulled away from her. Given this record, Webb fails to demonstrate a reasonable probability that any error regarding admission of the 2005 incident materially affected the outcome of the trial. Misdemeanor charge
Webb next challenges his conviction on the misdemeanor violation of a court order, arguing that at the time he was charged, the statute criminalizing violations of no-contact orders, RCW 26.50.110, only imposed criminal penalties in certain circumstances. In particular, he contends that because his telephone call to Christine from the jail was not a violation "for which an arrest is required," former RCW 26.50.110(1) did not impose a criminal penalty for his conduct. Because the State did not allege any of the statutory circumstances requiring criminal penalties in the charging document, list them as essential elements in the "to convict" jury instruction, or prove them at trial, Webb contends his conviction must be reversed. In State v. Bunker, ___ Wn. App. ___, 183 P.3d 1086, 1093 (2008), this court rejected the exact same argument and that holding controls.
We disagree with two recent Division II decisions which reach a contrary result: State v. Hogan, No. 35534-5-II (June 19, 2008); State v. Madrid, No. 35952-9-II (June 17, 2008).
Offender Score
Finally, Webb contends that the trial court improperly included a prior offense from California in his offender score when the State failed to present sufficient certified documentation to prove that the conviction had not washed out. RCW 9.94A.525(2)(c) provides that a class C prior felony conviction shall not be included in the offender score if the offender has spent five consecutive years in the community without being convicted of any crime "since the last date of release from confinement."
At the sentencing hearing, the State presented documents regarding Orange County Superior Court Case No. 98HF0544, including a felony complaint, a guilty plea form signed by Webb, and a judgment and sentence. The Orange County Seal and clerk's certification appeared on the back of the final page and referred to all ten pages. Also included in the ten pages is a minute order indicating that Webb appeared in court while in custody for a probation violation in Case No. 98HF0544 on October 17, 2003. The trial court properly relied on this evidence to conclude that the last date of Webb's release from confinement occurred on or after October 17, 2003, that is, less than five years before the current offense on January 4, 2007, such that the California conviction did not wash out. State v. Blair, 57 Wn. App. 512, 515-16, 789 P.2d 104 (1990) (confinement due to probation violations must be considered when determining application of washout provision). Thus, the trial court properly included the California offense in Webb's offender score.
Affirmed.