Opinion
No. 46018-8-I c/w 47717-0-I
Filed: July 21, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 99-1-06347-0 Judgment or order under review Date filed: 01/21/2000
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric Broman, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Nancy P Collins, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Kira Franz, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Stephen Paul Hobbs, King County Courthouse, Ste 5th, 516 3rd Ave, Seattle, WA 98104-2385.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Kenneth Bergman and his brother Howard Bergman were convicted of robbery. Howard was also convicted of assault against his girlfriend, Donna Wilhite. Kenneth argues that his conviction should be overturned because (1) an inadvertent statement was made before the jury that he had been imprisoned and (2) his trial counsel was ineffective for failing to ask for a third degree theft instruction. Neither of these arguments is meritorious. Kenneth's conviction for robbery is affirmed.
Howard Bergman asserts on appeal that (1) the robbery and assault charges against him should have been severed, (2) prior acts of violence against his girlfriend should not have been admitted, (3) statements that his girlfriend made to police after the alleged assault should not have been admitted as excited utterances, (4) the trial court should have held a competency hearing before allowing his girlfriend to testify, (5) there was insufficient evidence he committed the assault as charged, and (6) the State improperly excused a juror because of race. We disagree with each of Howard's contentions and affirm.
Kenneth and Howard both argue that the erroneous accomplice liability instruction given in their trial was not harmless error. However, under State v. Stovall, 115 Wn. App. 650, 63 P.3d 192 (2003), the instruction was harmless. Finally, the State concedes that Kenneth's and Howard's offender scores are inaccurate and we therefore reverse and remand each case for resentencing.
FACTS
Sometime in the late 1990s, Kenneth Bergman and Richard Houghton shared an apartment in Federal Way, Washington. One day, Kenneth called Houghton and told him that he would not be coming back to the apartment. Kenneth told Houghton to give all of his belongings to Kenneth's girlfriend, Tracy. Houghton testified that Tracy and a friend eventually picked up most of Kenneth's belongings. A few items were left behind in a closet.
In October of 1998, Houghton moved into his mother's place on Queen Anne Hill. On July 6, 1999, Kenneth called Houghton and asked if he was interested in purchasing methamphetamine. Houghton said that he was interested and arranged for Kenneth to come over to his home to drop it off that evening. When Kenneth arrived at Houghton's home between 7:00 p.m. and 7:30 p.m., he was with his brother, Howard Bergman and Howard's girlfriend, Donna Wilhite. Houghton knew Howard, but had never met Wilhite. Howard was openly carrying two knives in sheaths. They all sat in the living room and Houghton purchased $50 worth of methamphetamine from Kenneth.
After the purchase, either Kenneth or Howard told Houghton, `Now we are going to tell you what we are really here for.' Kenneth told Houghton that Houghton owed him about $2,000 worth of merchandise because he never received his personal belongings after moving out. Houghton assured him that he had given most of his belongings to Tracy and her friend. Kenneth had no response. Instead, Kenneth began to ransack Houghton's house.
As Kenneth was going through Houghton's home, Howard continued to hold the knives and keep an eye on Houghton. Houghton testified that the knives were `very scary.' Kenneth was collecting property of Houghton's and putting it on a table. Houghton was told that they wanted him to write down everything that they were taking as collateral. Houghton wrote down each item and was told to write down the value of the item. At the end of the list, Houghton wrote, `These items on the reverse side of this page are to be forfeited on 7/21/1999, unless the agreed upon dollar amount is paid in full or forfeited.' Houghton then signed the list. He testified that he did so because he feared for his life.
Eventually, Kenneth and Howard went to the basement and took four sleeping bags. They put all of Houghton's property into the sleeping bags and then put them in their car. They left between 5:00 and 5:30 a.m. Just prior to leaving, Howard told Houghton, `If you bring the law in, you are a dead man.' After they left, Houghton discovered that the cords to two of his phones had been cut. Houghton replaced one of the phone cords and called 911 around 7:00 a.m. Wilhite testified for the State. She did not know Houghton and had no contact with him before or after the robbery. Wilhite testified to essentially the same series of events regarding the night of the alleged robbery that Houghton testified to above.
In February of 1999, Wilhite had moved in with Gloria Bergman, Kenneth and Howard's mother. Wilhite's husband, Gloria Bergman's stepson Ted, had recently passed away. In May, Wilhite and Howard began an intimate relationship. After a few weeks together, Wilhite testified that Howard began to hit her.
Wilhite and her husband Ted had been addicted to heroin prior to his death. Wilhite gave up heroin when he died. She began to use methamphetamine with Howard in June of 1999. She used it a few times a week. She used methamphetamine before going to Houghton's house on July 6. For the few weeks following the alleged robbery of Houghton, Wilhite and Howard used methamphetamine every day. Wilhite testified that Howard was cruel to her during those weeks. Although Wilhite had opportunities to leave him during that time, she did not leave because she was scared and she loved him.
On July 24, Howard punched Wilhite in the face and Wilhite believed that her nose had been broken. Wilhite wanted to go to the hospital, but Howard told her not to go. On the morning of July 25, Wilhite took two Delatin painkillers. Howard and Wilhite then went to a friend's house. Wilhite testified that in the yard of the friend's house Howard picked up an iron bar and threatened to hit her with it. Wilhite ran into the street and yelled for someone to call 911. She then began running through yards and houses looking for a place to hide. She testified that she was scared of Howard and of the police because she had outstanding warrants. Wilhite admitted that her memory was imperfect because of her use of methamphetamine and painkillers and the confusion of her situation.
Wilhite was hiding inside a house, behind a sliding glass door when a female officer approached from outside. Wilhite remembered that she gave a statement to the police in which she stated that `Johnny' had inflicted her injuries. Wilhite testified that she did this because she still loved Howard and did not want the police to find him.
Wilhite was arrested and held in jail for several days on her outstanding warrants. While in jail, she was contacted by Seattle Police Detective Cooper. Wilhite agreed to help Detective Cooper in a narcotics investigation. Wilhite was paid $300 for her help. Wilhite also assisted in other narcotics cases, some of which were ongoing at the time of trial, and had been paid an additional $100 for her assistance. Wilhite did not enter into an immunity agreement with the State in return for her testimony in this trial.
Witness Jill ReRucha testified that on July 25, 1999, a woman ran through her backyard and into her house. The woman had bruises on her legs and a black eye. ReRucha offered to call 911, but the woman said she was afraid to go back to prison. ReRucha testified that the woman appeared `very scared and desperate.' The woman begged ReRucha to hide her. ReRucha was scared and told the woman that she had to leave. After the woman left, ReRucha called 911.
Officer David Ellithorpe responded to the 911 call. Upon arrival, Officer Ellithorpe spoke with ReRucha and then began to walk to the house where ReRucha indicated that Wilhite had fled. As he did so, he saw a male `peeking around [a] fence.' Officer Ellithorpe contacted this individual, Howard Bergman. Officer Ellithorpe asked Howard if he had seen the woman described by ReRucha. Howard said that he did not know and had not seen a woman fitting that description. Officer Ellithorpe told Howard that if he subsequently learned that Howard knew or had seen the woman and if she had been the victim of an assault or needed medical attention, that Howard might be arrested for hindering an investigation. Howard became angry and claimed that he was being bullied. At this point a second 911 call was received, reporting a dazed woman, who appeared to have been assaulted, running through yards two blocks north of Officer Ellithorpe's location.
Officer Kim Edens, responding to back up Officer Ellithorpe, immediately began an area search. She was soon flagged down by a witness who pointed toward a nearby house. Officer Edens ran up to the back porch and saw Wilhite behind a sliding glass door. Wilhite saw the officer, raised her hands and said, `Please. Oh, no.' Officer Edens attempted to calm Wilhite down, telling her they were there to help her. Officer Edens got Wilhite to come outside.
Officer Edens testified that Wilhite had softball size bruises on both legs and two black eyes. It appeared that Wilhite had urinated on herself. Officer Ellithorpe testified the Wilhite's injuries consisted of `two black eyes, and swelling, and puffiness on her face, and then just excessive bruising on her legs.' Officer Ellithorpe also testified that the bruising on Wilhite's legs was not consistent with injecting an intravenous drug.
Officer Ellithorpe described Wilhite as `shaking, crying, and somewhat hysterical.' When asked if she knew Howard Bergman, Wilhite began crying and appeared panicked. Wilhite said, `Don't tell Howard that I'm here.' When Officer Ellithorpe asked Wilhite, `Who did this to you?' Wilhite said, `Johnny.' Wilhite was also uncertain about her location. She believed that she was in Pierce County and when an officer told her she was in King County, she asked if she had `run all [the] way' to Seattle.
After Wilhite was arrested, Officer Ellithorpe again contacted Howard Bergman and placed him under arrest. During a subsequent search of Howard's car, two knives, later identified at trial by both Houghton and Wilhite as the knives displayed during the robbery, were found in Howard's car.
Gloria Bergman testified for the defense. She testified that Wilhite had a reputation among her family and friends of being untruthful.
ANALYSIS I. Issues Raised by Kenneth Bergman
A. Prior Bad Act Statement
Kenneth brought a pretrial motion to exclude prior bad acts. The State argued that it intended to admit testimony that Kenneth was in custody when he told Richard Houghton to give Kenneth's girlfriend his belongings. The State argued that the testimony was necessary to explain the background of the property. The trial court disagreed, granted the motion and excluded the evidence.
During trial, Howard Phillips, counsel for Howard inadvertently violated the trial court's order. While impeaching Donna Wilhite, Phillips asked:
And isn't it true that you told her that it actually had been `me,' been your idea to have Kenny make a list of the items that you felt Houghton had been deprived him of while Kenny was in prison.
Wilhite responded, `I don't know.' Kenneth's counsel objected and asked for a side bar. After the side bar, the trial court stated, `I will instruct the jury to disregard the last question entirely. It will be stricken from the record. I will ask that Mr. Phillips rephrase his question.' Phillips then stated, `I apologize, Your Honor, to co-counsel and co-defense as well.' Outside the presence of the jury, Kenneth moved for a mistrial. The trial court denied the motion.
Kenneth argues that the trial court erred in failing to grant his mistrial motion following reference to his recent release from prison. A trial court has discretion in whether to grant or deny a motion for a mistrial. This court will only find an abuse of that discretion when no reasonable judge would have reached the same conclusion. State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994). A mistrial should be granted only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly. Johnson, 124 Wn.2d at 76. `Only errors affecting the outcome of the trial will be deemed prejudicial.' Johnson, 124 Wn.2d at 76. On appeal, this court determines whether a mistrial should have been granted by considering: (1) the seriousness of the trial irregularity; (2) whether the trial irregularity involved cumulative evidence; and (3) whether a proper instruction to disregard cured the prejudice against the defendant. Johnson, 124 Wn.2d at 76.
Prior conviction evidence is `very prejudicial, as it may lead the jury to believe the defendant has a propensity to commit crimes.' State v. Hardy, 133 Wn.2d 701, 706, 946 P.2d 1175 (1997). The statement by co-counsel regarding Kenneth's prior prison time had the potential of being very prejudicial. However, the immediate objection, lack of emphasis and curative instruction mitigated against this prejudice.
Kenneth relies on State v. Escalona, the one case in which an appellate court appears to have found that a curative instruction was not sufficient to cure a trial irregularity. 49 Wn. App. 251, 742 P.2d 190 (1987). In Escalona, the defendant was charged with assault in the second degree for threatening the victim with a knife. 49 Wn. App. at 252. During cross-examination, the victim made an unsolicited statement that the defendant had a record and had stabbed someone. Escalona, 49 Wn. App. at 253. On appeal, this statement was deemed to be a serious irregularity because it related directly to the conduct with which the defendant was charged. The court noted that the jury was likely to consider this prior conviction to be logically relevant and conclude that the defendant acted in conformity with his past behavior. Escalona, 49 Wn. App. at 255-56.
The Escalona court concluded that in light of the extreme weakness of the State's case and the direct logical connection between the improper testimony and the charged crime, a curative instruction was insufficient. 49 Wn. App. at 255-56.
By contrast, the improper statement here did not reveal the nature of Kenneth's prior crime. Therefore, the seriousness of the irregularity was not as severe as in Escalona. Furthermore, the case against Kenneth was stronger than the case against Escalona. Two witnesses, Houghton and Wilhite, who had never met or discussed the case, were in essentially complete agreement about the actions taken by Kenneth during the course of the alleged robbery. Under the facts of this case, a passing reference to Kenneth's prison time was not so prejudicial as to deprive him of his right to a fair trial. The trial court did not abuse its discretion in denying Kenneth's motion for a new trial.
B. Ineffective Assistance /Lesser Included Offense
Kenneth claims that his trial counsel was ineffective. `The purpose of the requirement for effective assistance of counsel is to ensure a fair and impartial trial.' State v. Walton, 76 Wn. App. 364, 371, 884 P.2d 1348 (1994). Washington courts apply a two-prong test for evaluating trial counsel's effectiveness. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the test, a defendant has the burden to show:
(1) defense counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) defense counsel's deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). There is a strong presumption that counsel's representation is effective. State v. Holm, 91 Wn. App. 429, 435, 957 P.2d 1278 (1998).
Kenneth argues that his trial counsel's performance was deficient for failing to request a lesser included offense instruction. The law regarding instructions on lesser included offenses was explained in State v. Workman as follows:
Under the Washington rule, a defendant is entitled to an instruction on a lesser included offense if two conditions are met. First, each of the elements of the lesser offense must be a necessary element of the offense charged. Second, the evidence in the case must support an inference that the lesser crime was committed.
90 Wn.2d 443, 447-48, 584 P.2d 382 (1978) (internal citations omitted).
The first condition is the `legal prong'; the second condition is the `factual prong.' State v. Berlin, 133 Wn.2d 541, 546, 947 P.2d 700 (1997).
While theft in the third degree does satisfy the legal prong, the factual prong of the Workman test is not satisfied in this case. The evidence does not support an inference that the lesser crime was committed. One element of theft in the third degree is that the stolen property did not exceed $250 in value. RCW 9A.56.020(1)(a) and RCW 9A.56.050(1)(a). It was undisputed at trial that the amount of property taken from Houghton was at least $2,000. No evidence was presented that the amount of property at issue was below $250.
Kenneth argues, however, that the value limit is not a true element of the crime of theft in the third degree. The cases Kenneth relies upon do not aid his argument. The cases, instead, hold that a defendant can still be convicted of theft in the third degree if no value is established at trial. See State v. Rhinehart, 92 Wn.2d 923, 926, 602 P.2d 1188 (1979); State v. Rogers, 30 Wn. App. 653, 655, 638 P.2d 89 (1981). Neither case stands for the proposition that the defendant could be convicted of theft in the third degree if the property in question was above $250.
Kenneth has failed to establish that a theft in the third degree instruction was proper. He therefore fails to establish that his counsel's performance at trial was deficient for failing to request the instruction.
II. Issues Raised by Howard Bergman
A. Severance
Howard moved pretrial to sever the robbery and assault charges against him. Howard argued that the assault charge was very prejudicial, since it would depict Howard as a violent person, counter to his defense that the alleged robbery was merely a property dispute. Moreover, trying the robbery with the assault would bolster the evidence in the assault charge by showing Howard had a criminal disposition and/or a violent temper.
The State argued that because of the many charges against the Bergmans, the court was already looking at a number of separate trials. The State also argued that the assault against Wilhite was admissible in the robbery case to explain why Wilhite would have cooperated with the Bergmans during the robbery. Given that Wilhite's credibility was likely to be central to both cases, the court found the assault would be admissible in the robbery to explain Wilhite's cooperation with it. During the trial, however, Wilhite testified she participated in the robbery voluntarily.
While Howard was in jail, a woman named Christine Burley attempted to kill Houghton, and Kenneth was linked to the attempt. The State moved to add counts of conspiracy to commit murder and possession of ephedrine with intent to manufacture methamphetamine to Howard's charges. Because the State moved to add counts in late September 1999, with trial scheduled for early October 1999, the court did not permit the amendment. These counts were later resolved by Howard's Alford plea to rendering criminal assistance, for which he was sentenced to 60 months, consecutive to the instant cause number.
The court considered the factors relevant to a severance motion and found:
Under the analysis that I think the case law dictates to the Court, I must take a look at the strength of the State's evidence on each of the counts and whether the State is using the evidence of one count to string it along with the stronger case when the second count presents a weaker case simply to try to convict the defendant with numbers, so to speak.
From my reading of the materials that were handed to the Court, including the certification for determination of probable cause, it seems to me that the evidence on both counts is pretty equal.
The trial court also found that if severed, the assault would be admissible evidence in the robbery with a limiting instruction in order to explain Wilhite's presence at the scene.
Howard renewed his motion to sever at the close of the State's case-in-chief. The trial court denied the motion.
On appeal, Howard argues that the trial court erred when it did not sever the robbery and assault charges against him. The State counters that the trial court properly denied the severance because there was little prejudice from joining the charges, any prejudice was appropriately mitigated and any residual prejudice did not outweigh the strong presumption in favor of joint trials. `A trial court's refusal to sever is reviewed for manifest abuse of discretion.' State v. Bryant, 89 Wn. App. 857, 864, 950 P.2d 1004 (1998).
A defendant seeking severance has the burden of demonstrating that a trial involving multiple offenses would be so manifestly prejudicial as to outweigh the concern for judicial economy. State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990). Joinder of offenses may prejudice a defendant in the following ways:
(1) he may become embarrassed or confounded in presenting separate defenses; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find.
State v. Smith, 74 Wn.2d 744, 755, 446 P.2d 571 (1968).
Further, even though evidence of one count would not be admissible in a separate trial on the other count, severance is not automatically required. Bythrow, 114 Wn.2d at 720. The Bythrow Court relied on the following reasoning in United States v. Johnson, 820 F.2d 1065 (9th Cir. 1987):
'Even if the evidence would not have been admissible, the district court did not abuse its discretion because the jury was not likely in this case to confuse which count particular evidence was introduced to establish. When evidence concerning the other crime is limited or not admissible, our primary concern is whether the jury can reasonably be expected to `compartmentalize the evidence' so that evidence of one crime does not taint the jury's consideration of another crime. . . . We must insure that the trial court properly instructed the jury on the limited admissibility of evidence, . . . and will determine whether the jury appeared to have followed the instructions.'
114 Wn.2d at 721 (quoting Johnson, 820 F.2d at 1071). The Bythrow Court determined that when the issues were relatively simple and when the trial lasted only a few days, `the jury can be reasonably expected to compartmentalize the evidence.' Bythrow, 114 Wn.2d at 721. A court should also look to the strength of the State's evidence on each count in determining the possible prejudice from joinder. Bythrow, 114 Wn.2d at 721.
Howard's defense to the robbery was that it was just a property dispute and his defense to the assault was that he did not assault Wilhite. Howard was neither embarrassed nor confounded in presenting these defenses in a single trial. There was also little likelihood that the jury would improperly cumulate the evidence. The two charged offenses occurred on separate dates, involved separate witnesses and different victims. The jury would have little difficulty compartmentalizing the evidence of the different crimes.
Even if prejudice could be inferred based simply on trying two crimes at once, such prejudice was effectively mitigated. First, this was not a case in which the State was attempted to join a weaker case with a stronger one. When the evidence is strong on multiple counts, the likelihood that the trier of fact would use other charges as a basis for the defendant's guilt on any one charge is minimized. Smith, 74 Wn.2d at 755.
Here, the evidence supporting both of Howard's convictions was equally strong. Both Houghton and Wilhite, who had no other contact besides the night of the alleged robbery, testified to the same relevant events on the night of the robbery; namely, that Kenneth and Howard took Houghton's possessions under threat of force. The evidence of the assault was also strong. Wilhite testified that she was assaulted multiple times during the charging period. She had two black eyes to substantiate her story. Her erratic behavior after the alleged assault also lends credibility to her testimony. Further, Howard's suspicious behavior towards police in denying any knowledge of Wilhite or her location also weighs against him.
Second, the clarity of the defenses mitigated against any potential prejudice. In considering the issue, the trial court concluded:
I don't think there is any question in my mind that the clarity of defenses on each count would in any way be confused The defenses are that [Howard Bergman] didn't commit a robbery and he did not assault . . . Donna Wilhite. It's not as if there's a claim of self-defense in both of these case[s], perhaps, and the jury may become confused or confounded as to how to apply those two defenses.
I don't think there's any issue that the clarity of defenses is not a legitimate concern in cases where there's a general denial of the elements of the offense.
Finally, the jury instructions properly instructed the jury that they were to consider each of the charged counts separately. The standard pattern jury instruction was given which stated:
A separate crime is charged against one or more of the defendants in each count. The charges have been joined for trial. You must decide the case of each defendant or each crime charged against that defendant separately. Your verdict on any count as to any defendant should not control your verdict on any other count or as to any other defendant.
Jurors are presumed to follow the court's instructions and there is no reason to believe that the jury failed to do so in this case. State v. Lough, 125 Wn.2d 847, 864, 889 P.2d 487 (1995). Further, the State emphasized in closing that the assault in the third degree charge against Howard was `a separate crime' and that the jury should consider the robbery and assault charges separately. No suggestion was made that the jury should find Howard guilty of robbery because he had assaulted Wilhite or vice versa. The court's instructions to the jury and counsel's argument mitigated any prejudice that may have resulted from a joint trial. The trial court did not abuse its discretion in denying the motion for severance.
B. Joinder
Howard also argues on appeal that the robbery and assault charges against him were improperly joined. The State asserts that Howard waived this argument by not raising it below. In order to establish that the counts were improperly joined, Howard would have to establish, in part, that the prejudice to him resulting from joinder outweighed the strong public policy in favor of joinder in Washington. Bryant, 89 Wn. App. at 865. As discussed above, Howard has failed to establish sufficient, unmitigated prejudice. Whether Howard waived his objection to joinder or not, his argument is without merit. C. Prior Bad Acts
Howard argues that the prior acts of violence against Wilhite should not have been admitted as evidence of either the robbery or the assault.
The State charged the assault as occurring sometime between July 20 and 25, 1999. The trial court initially granted Howard's motion to exclude assaults outside this period. On the morning of trial, Howard reiterated that Wilhite should not testify to prior acts, such as her contention that Howard `hit her every day.' The State again argued Wilhite's relationship with Howard was relevant to the robbery, and the prior acts were therefore relevant. The court indicated:
As a victim of domestic violence, I believe the rules allow for some prior conduct towards an individual is allowed when it can go to elements such as intent, and motive, and knowledge. So, I can't preclude the victim, the alleged victim, from being able to testify to the picture that the State is trying to present.
I think the . . . Supreme Court has held, that other acts of violence towards that individual may come into evidence, so to give the jury a complete picture of what it is the State is talking about. There is an allegation of assault in this case, which I think makes it even more pertinent.
So, I think it's safe for me to say that I will admit some testimony of prior bad acts to the alleged victim, by Mr. Howard Bergman, and as it regards Mr. Howard's version.
Howard objected, asking the court to reconsider. The trial court declined to alter its ruling.
Wilhite testified that Howard began hitting her in May 1999, about two weeks into their romantic relationship, and from that point on hit her `all [of] the time.' She repeated this testimony, and Howard objected, but the objection was overruled.
Wilhite also testified to Howard's treatment of her between the robbery and the charged assault.
Q. How did Howard treat you during that period of time?
A. He was cruel.
Q. Did the physical abuse continue?
A. Yes.
Decisions concerning the admissibility of evidence are within the discretion of the trial court and are reviewed for abuse of that discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
When considering the admissibility of evidence under ER 404(b), the trial court must find by a preponderance of the evidence that the claimed misconduct occurred. State v. Pirtle, 127 Wn.2d 628, 649, 904 P.2d 245 (1996). To avoid error, the trial court must identify the purpose of the evidence, explain how the evidence is relevant to such purpose and conduct a balancing of the probative value versus the potential for unfair prejudice on the record. State v. Jackson, 102 Wn.2d 689, 693-94, 689 P.2d 76 (1984).
The trial court did not make any of the above required findings on the record. As this court has held:
When the trial court fails to conduct the on-the-record balancing process required by ER 404(b), a reviewing court should decide issues of admissibility if it appears possible after reviewing the record as a whole. As the court aptly stated in State v. Gogolin, 45 Wn. App. at 645, 727 P.2d 683: '[W]hat purpose is served by reversing a conviction where the questioned evidence is relevant and admissible? The trial court's failure to articulate its balancing process on the record does not make admissible evidence inadmissible.'
State v. McGhee, 57 Wn. App. 457, 460-61, 788 P.2d 603 (1990) (quoting State v. Gogolin, 45 Wn. App. 640, 645, 727 P.2d 683 (1986).
ER 404(b) specifically permits introduction of evidence of `other crimes, wrongs, or acts' for the purpose of proving `motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.' ER 404(b). In addition, Washington courts have recognized a `res gestae' or `same transaction' exception. State v. Tharp, 27 Wn. App. 198, 205, 616 P.2d 693 (1980). Under this exception, evidence of other crimes is admissible "to complete the story of the crime on trial by providing its immediate context of happenings near in time and place." Tharp, 27 Wn. App. at 204 (quoting 1 C. Torcie Wharton's Criminal Evidence sec. 263 (13th ed. 1972)).
The State contends that the prior acts of violence against Wilhite were admissible under this exception. The State specifically relies on the case of State v. Grant, 83 Wn. App. 98, 920 P.2d 609 (1996). In Grant, the defendant was charged with felony violation of a no-contact order. The court admitted evidence of prior assaults over objection, holding, `evidence of Grant's prior assaults on the victim was properly admissible under ER 404(b) because it was relevant in assessing the victim's credibility as a witness and accordingly in determining whether the assault in fact occurred, and because the probative value outweighed its prejudicial effect.' Grant, 83 Wn. App. at 100-01. The evidence was admissible in order to explain the victim's statements and conduct which might otherwise have appeared inconsistent with her testimony of the assault at issue. The defendant's history of domestic violence explained why the victim permitted him to see her despite the no-contact order, and why she minimized the degree of violence when she contacted his defense counsel after receiving a letter from him, sent from jail. Grant, 83 Wn. App. at 100-02.
The testimony regarding the prior acts of violence was relevant to explain Wilhite's lie about `Johnny' assaulting her and her later recantation of that statement. As in Grant, the prior bad acts were relevant to explain the full picture of Wilhite's violent relationship with Howard and to explain why she might have lied to the police. After reviewing the record as a whole, we conclude that Wilhite's testimony regarding past abuse was admissible.
D. Excited Utterance
Howard argues that Wilhite's statements to police at the time of her arrest should not have been admitted as excited utterances. During trial, the court held a hearing outside the presence of the jury at which Wilhite testified concerning her state of mind and demeanor at the time of her arrest. The court ruled that the statements were admissible as excited utterances, that a preponderance of evidence supported the occurrence of the startling event, and that any confusion or insincerity in Wilhite's statements went to the weight of her testimony and not its admissibility.
The hearsay testimony of Officer Ellithorpe consisted of the following:
A. . . . Then I asked [Wilhite] if she knew or knows Howard Bergman.
Q. [Prosecutor] And what was her response?
A. She immediately began crying, appeared to break into kind of a panic look on her face, and immediately said to me, `Don't tell him you guys have me.'
. . . .
Q. Did [Wilhite] say anything else to you?
A. She continued saying, `Don't tell Howard that I'm here.' And I asked her what happened to her. And she cried, and then I said, `Who did this to you?,' referring to her injuries on her face and on her legs. And she said, `Johnny did it.'
Q. What was your response to that question when asked?
A. When I asked her about Johnny, tell me, was he driving a car, did he drop you off, does he live around here, referring to the area where we were. But, she couldn't tell me anything about Johnny.
Q. Did you make any more inquires about Howard Bergman?
A. I asked her, `Is it Howard who did this to you?' And she just started crying, and appeared to me to be in deep fear.
After describing Wilhite's condition and demeanor, Officer Eden testified to the following:
A. [Wilhite] said that her boyfriend, who she referred to as Johnny, had beaten her severely over the last two days, and, you know, that she was running, I guess, scared from that, and didn't want to go to jail as well.
Q. Did you ask her questions about the month, and the day, and where she worked?
A. I did.
Q. What was her response to those questions?
A. My recollection, and it's not in my statement, is that she was approximate on the day and the month. But, she told me that she felt that she was in Pierce County, Tacoma. I asked her, `Do you realize that you are in Seattle, that I am a Seattle police officer?' And her reaction was, `Oh my god, did I run all that way?'
A trial court's decision to admit hearsay statements as excited utterances will only be overturned for an abuse of discretion. State v. Woods, 143 Wn.2d 561, 597, 23 P.3d 1046, cert. denied, 122 S.Ct. 374, 151 L.Ed.2d 285 (2001). The hearsay rule generally excludes an out-of-court statement offered to prove the truth of the matter asserted. ER 801(c); ER 802. However, such statements may be admitted if they are excited utterances. ER 803(a)(2). In order to be admitted as excited utterances, the statements must satisfy the following conditions: (1) a startling event or condition must have occurred, (2) the statement must have been made while the declarant was under the stress of the excitement caused by the event or condition, and (3) the statement must have been made in relation to the startling event or condition. State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992).
Howard argues that if any startling event occurred, then it was the alleged beating that occurred the day before Wilhite's statements to police. The trial court's finding that a startling event occurred by a preponderance just prior to Wilhite's attempts to hide in strangers' houses, however, was supported by the evidence. Wilhite herself testified that Howard threatened her with an iron bar. She also testified that he had been beating her regularly for weeks and she was terrified of him. Three witnesses testimony, including Jill ReRucha, Officer Edens and Officer Ellithorpe, supported Wilhite's version of events in that they observed severe bruising on her face and legs and observed that Wilhite was very frightened. This evidence is sufficient that a startling event, a threat by Howard to injure Wilhite, had occurred on the day of her arrest.
The trial court also properly found that Wilhite made the statements to police under the stress of the startling event. Although the key to this second requirement is spontaneity, the passage of time alone is not determinative. State v. Williamson, 100 Wn. App. 248, 258, 996 P.2d 1097 (2000). Statements are generally not considered to be spontaneous when the declarant had the opportunity to reflect on the event and fabricate a story about it. Williamson, 100 Wn. App. at 258. Courts also consider the declarant's emotional state in determining whether the statement is an excited utterance. Williamson, 100 Wn. App. at 258.
The pretrial and trial testimony established that Wilhite was under the stress of the ongoing abuse by Howard and reacting directly to his threat to injure her further. Wilhite's undisputed actions, specifically her running frantically into the homes of complete strangers in an attempt to hide, her demeanor, specifically her crying, and appearing in deep fear, provide ample evidence to support the trial court's conclusion that she was still under the stress of the startling event.
Howard contests this finding, arguing that Wilhite's admitted lie about who committed the assault is indisputable proof that she had time to reflect and fabricate. We disagree. Howard relies upon State v. Brown, 127 Wn.2d 749, 903 P.2d 459 (1995) for support of his argument which is distinguishable. In Brown, an alleged abduction and rape occurred. The victim told a 911 operator initially that four men had kidnapped her and taken her to a motel room. During trial, however, the victim admitted that she was a prostitute and had willingly gone to the motel room. The State Supreme Court concluded that the victim had time to reflect and fabricate a story, and that the statement on the 911 tape was not spontaneous. Brown, 127 Wn.2d at 757-58.
Here, there was no evidence or admission that Wilhite had time to think and fabricate a story about the assault. From the evidence, it appears that Wilhite's response was ingrained and not one made with care or deliberation. The trial court properly found that Wilhite's statements were made under the stress of the startling event.
Finally, the trial court properly found that the statements related to the startling event. Wilhite begged the officers not to tell Howard where she was and stated that she was running in part to escape abuse from her boyfriend. These statements clearly relate to the startling event, Howard's threat to beat her with an iron bar. The trial court therefore properly admitted Wilhite's statements to police as excited utterances.
E. Competency
Howard argues that if the statements were properly admitted as excited utterances then the trial court erred in not holding a competency hearing for Wilhite. Wilhite admitted that during the 18 days between the robbery and her arrest she had been using methamphetamine. She also stated that she had taken the painkiller Delatin shortly before she was arrested. At trial, Howard asserted that this made Wilhite an incompetent witness and requested a competency hearing. The trial court denied his motion. Howard argues that Wilhite's mistaken identification of Johnny for Howard and her confusion about her location when arrested are evidence that a competency hearing was proper.
A trial court's findings as to a witness's competency will not be reversed on appeal absent a manifest abuse of discretion. State v. Swan, 114 Wn.2d 613, 645, 790 P.2d 610 (1990). Under RCW 5.60.050:
The following persons shall not be competent to testify: (1) Those who are of unsound mind . . ., and
(2) Those who appear incapable of receiving just impression of the facts, respecting which they are examined, or of relating them truly.
Although Wilhite's testimony was confused, many of her statements are supported by other witnesses. For example, she was able to accurately describe her interaction with ReRucha and how Officer Eden discovered her. Although she testified that `Johnny' had hurt her and stated later that `for a while [she] almost thought [Johnny had done it],' she admitted that she lied about Johnny in order to shield Howard. The trial court properly found that any confusion in her testimony went to the weight and not to its admission as competent. See State v. Watkins, 71 Wn. App. 164, 857 P.2d 300 (1993). A competency hearing was not required under RCW 5.60.050. The trial court did not abuse its discretion in denying the request for a competency hearing.
F. Cumulative Error
Howard argues that his conviction should be reversed based on cumulated error. Where individual error may not, standing alone, be sufficient to warrant reversal, the cumulative effect of each of the errors together may deprive a defendant of his constitutional right to a fair trial. State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984).
Howard contends that the errors of: (1) failure to sever; (2) admission of unconnected assaults; and (3) admission of hearsay would all tend to aggravate each other. These errors he contends, plus the additional erroneous accomplice liability instruction discussed later in this opinion, made a fair trial impossible. Since we find no error, Howard's cumulative error argument fails.
G. Sufficiency of the Evidence
Howard argues that there was insufficient evidence to sustain his conviction for third degree assault. Evidence sufficiently supports a conviction when, viewed in the light most favorable to the State, the evidence permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). Here, the State was required to prove that between July 20 and 25, Howard, '[w]ith criminal negligence, cause[d] bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering.' RCW 9A.36.031(1)(f).
Wilhite testified that on July 24 Howard hit her in the face and broke her nose. Although no medical evidence was offered to substantiate that Wilhite's nose was broken, three witnesses testified to the bruising on Wilhite's face on July 25. Howard argues that because Wilhite never testified that her injury was `accompanied by substantial pain that extends for a period sufficient to cause considerable suffering,' the evidence was insufficient for a conviction. We disagree. Wilhite testified that she wanted to go to the hospital because of the injury inflicted by Howard.
When Howard stopped her from going to the hospital, Wilhite testified that she took Dilantin, a painkiller, to ease her suffering. Additionally, two large black eyes caused by being punched in the face can reasonably support an inference that the victim suffered a great deal of pain for a considerable time. Howard's sufficiency argument fails.
H. Jury
Howard argues that the State improperly used a peremptory challenge to excuse Juror 11 from the jury. In response to a general question by the court as to whether they knew individuals who were substance abusers, Juror 11 answered that he had a brother who was currently an alcoholic and who had been through treatment. During voir dire, the following exchange occurred between the prosecutor and Juror 11:
[Prosecutor]: Okay. I think [I] . . . noted that you had a brother who was a recovering addict; is that correct?
[Juror 11]: I didn't say recovering. I just said he was an addicted alcoholic.
[Prosecutor]: Is it alcoholic or drugs?
[Juror 11]: I don't know what he does, but I know it's alcohol for sure.
[Prosecutor]: Would the fact that you have a brother who is an alcoholic, and perhaps involved in other drugs, if this case involved individuals who used drugs, perhaps selling drugs, would that be a concern to you?
[Juror 11]: Concern me? It depends on the person that's using. But, I can't say either way. I don't know.
[Prosecutor]: When I say concern, [I mean] something that might affect your ability to fairly judge somebody who is on trial.
[Juror 11]: No. No.
The following exchange then occurred between Howard's counsel and Juror 11:
[Mr. Phillips]: Do you have [any] children?
[Juror 11]: Right.
[Mr. Phillips]: Would you leave your children with a drug user?
[Juror 11]: No.
[Mr. Phillips]: Why not?
[Juror 11]: I've heard of people lending out kids, to watch them so they can go use. I wouldn't want them watching mine. No, I wouldn't do that.
Kenneth's counsel also asked, '[H]ow many people have heard the phrase, `I take the Fifth,' conversation in movies?' This generated the following conversation:
[Juror 13]: Maybe trying to protect their involvement or their guilt in something.
[Ms. Neal]: Would anyone disagree that we attach a negative connotation to that, if someone says I am taking the Fifth, or I am remaining silent, that there is an inference or a suggestion that they are hiding guilt? Would anyone disagree with that? I see Number 11, you are shaking your head yes?
[Juror 11]: I don't disagree.
[Ms. Neal]: When you are shaking your head yes, what do you mean?
[Juror 11]: I am going along with what you are saying. I think they are trying to hide something.
The State used a peremptory challenge to excuse Juror 11, the only African American in the jury pool. Howard objected. After a side bar, the trial court upheld the exercise of the peremptory challenge by the State. On the next trial day, Howard resumed his objection under Batson. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State responded:
[Prosecutor]: . . . I will put my reason for excusing that juror on the record. And, this is the juror in seat Number 11. The last name is Hillard. Specifically, most importantly, Mr. Hillard said he doesn't like drug users. He had a brother who was a recovering addict, and he [had] very strong feelings about addicts in general. As the Court [may] be aware, that is going to be a key issue in this case.
He made a statement concerning his belief in God, and how he thought that, in a sense, would affect his deliberations. I was concerned about that as well. And, finally, it was unclear his position on Fifth Amendment issues.
The primary issue here is what his belief and opinions are about addicts, about recovering alcoholics, those by themselves would have justified my striking him or any juror from the panel.
The trial court, again upholding the State's peremptory challenge to Juror 11, concluded in part, `I think that the argument stated about his attitude towards drug users and drugs in our society, the fact that his brother has had some difficulty with drugs himself, is enough of a justification by itself.'
Under the equal protection clause, the prosecution cannot use its peremptory challenges to exclude otherwise qualified and unbiased persons from the jury solely by reason of their race. State v. Sanchez, 72 Wn. App. 821, 825, 867 P.2d 638 (1994). `A defendant may raise this issue even if he is not the same race as the juror the prosecutor challenged.' Sanchez, 72 Wn. App. at 825.
The defendant must establish a prima facie case of purposeful discrimination in the selection of the jury. Sanchez, 72 Wn. App. at 825. To establish a prima facie case, the defendant must show: (1) that the peremptory challenge was exercised against a member of a constitutionally cognizable racial group, and (2) that the use of the peremptory challenge and other relevant circumstances raise an inference of discrimination. Sanchez, 72 Wn. App. at 825. If the defendant is able to establish a prima facie case, the burden then shifts to the prosecution to `come forward with a neutral explanation for its use of the peremptory.' Sanchez, 72 Wn. App. at 826. `More than a general denial of discriminatory intent is required:
'[t]he prosecutor . . . must articulate a neutral explanation related to the particular case to be tried.' Sanchez, 72 Wn. App. at 826 (quoting Batson, 476 U.S. at 98).
The trial court's determination of whether there was a discriminatory purpose behind the challenge will not be set aside unless it is clearly erroneous. State v. Wright, 78 Wn. App. 93, 99, 896 P.2d 713 (1995). The same standard of review applies to a trial court's determination of whether a prima facie case has been established. Wright, 78 Wn. App. at 99. Under Wright, '[t]he fact that the . . . prosecutor dismissed the only eligible African-American juror is a factor which could raise an inference of discrimination.' Wright, 78 Wn. App. at 101. The Wright court, however, went on to explain, '[a]t the same time, courts have been hesitant to find discriminatory motivation in numbers alone.' 78 Wn. App. at 102.
Here, Howard has failed to establish a prima facie case of discrimination. Although the excused juror was a member of a cognizable racial group, no other factors raise an inference of discriminatory purpose. Further, the trial court properly used its discretion in accepting the prosecution's race neutral explanation.
III. Issues Raised by Kenneth and Howard Bergman
A. Accomplice Liability Instruction
Kenneth and Howard argue that the accomplice liability instruction was erroneous. The contested instruction given to the jury read:
A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.
A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of a crime, he or she either:
(1) solicits, commands, encourages, or requests another person to commit the crime; or
(2) aids or agrees to aid another person in planning or committing a crime.
The word `aid' means all assistance whether given by words, acts, encouragement, support, or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of criminal activity of another must be shown to establish that a person present is an accomplice.
(Emphasis added). The State concedes that this instruction erroneously informed to the jury to find either the defendant guilty as an accomplice if he aided in the commission of `a' crime rather than `the' specific crime for which he was charged. State v. Roberts, 142 Wn.2d 471, 511, 14 P.3d 713 (2000); State v. Cronin, 142 Wn.2d 568, 578-79, 14 P.3d 752 (2000).
The State argues, however, that the erroneous instruction was harmless error. An erroneous accomplice instruction may be considered harmless error on appeal. State v. Brown, 147 Wn.2d 330, 58 P.3d 889 (2002). The test to be applied is whether the error relieves the State of its burden to prove each element of the charged crime. Brown, 147 Wn.2d at 332. The Court in Brown further held:
An erroneous instruction is harmless if, from the record in a given case, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. The analysis must be completed as to each defendant and each count charged.
In the recent decision in State v. Stovall, this court held that `if evidence of an uncharged crime is before the jury, and the State argues that the defendant's participation in such crime triggered liability for the specific crime charged, reversal is required.' 115 Wn. App. 650, 652, 63 P.3d 192 (2003). In Stovall, one of the appellants argued that the prosecutor's arguments at trial focused the jury on other criminal endeavors besides the charged crime. This court found, however, that `as [the] case was tried and argued, the jury was aware that the accomplice liability had to be based on the specific crime charged.' Stovall, 115 Wn. App. at 658.
Kenneth and Howard contend the erroneous instruction allowed the jury to convict them as accomplices to any of the possible crimes that occurred at Houghton's residence that night and not specifically to the charged crime of robbery. Kenneth and Howard cite delivery of a controlled substance and theft as two uncharged crimes that the jury could have used to support an accomplice theory. The record, however, reveals that the jury was well informed that they had to rely on the charged crime of robbery in order to convict under the accomplice liability instruction.
With regards to the erroneous accomplice instruction, the prosecution argued the following in closing:
Now, what makes an accomplice? There are two ways to do it. And that is `or.' These are alternatives. You can solicit, command, encourage, or request somebody to do it. I suggest that there is strong circumstantial evidence that that's exactly what occurred here. All the testimony was that they were going back, both Richard and Donna, to get Kenneth Bergman's possessions. Well, did Howard think it was a good idea to do that by himself? Or did Kenneth want his stuff back? Did Kenneth say hey, let's go get my stuff? That's a circumstantial inference, but as the Jury Instructions say, circumstantial evidence is as good as direct evidence. But, it's irrelevant in the bigger scheme of things because this is what I would like you to focus on: Aids or agrees to aid another person in the commission of the crime. And then the key section of that Instruction. What does `aid' mean? It means present and ready to assist. Ready to assist means you help with words. You can stand there and say hey, that's a good idea, go hit him, or go take that stuff. Act. You can go through the house and start collecting stuff. Encouragement, support, or presence.
Now, I can almost hear the defense attorneys, when they get up here, saying well, Kenneth didn't have the knife, he didn't push anybody, he may not have threatened anybody, he is not an accomplice. It doesn't matter. If he was there, assisting Howard Bergman by his actions, gathering stuff, putting it on the table, whatever, then he is an accomplice.
. . . .
We have obviously Kenneth Bergman running around, taking property that didn't belong to him, and that makes him an accomplice. And significantly, that testimony is unrefuted, Houghton's and Wilhite's testimony together is that's what Kenneth was doing.
Now, his actions in assisting Howard make him guilty as an accomplice for Robbery One, Robbery in the First Degree, robbery in which he displays a deadly weapon, because that's what Howard did. And Kenneth participated in that activity.
The prosecutor later argued:
The second point I want you to consider is, in voir dire, when we initially picked this jury last Thursday, you got chosen to come forth here, several things were discussed. One of them was, will you hold the fact that the defendant, a defendant, either defendant . . ., that there is evidence that they might have used drugs. I think everybody would agree that that is not the focus of this case, it's irrelevant and not appropriate.
Kenneth's defense counsel in closing made the following relevant remarks:
There also has to be some indication of knowledge of the intent to commit the crime charged. Mr. Hobbs said to you running around, taking property that didn't belong to him, referring to Kenny Bergman, and that makes him an accomplice. It may. It may make him accomplice to a theft because that's what he was doing, and that's the evidence of an intent that we have.
He left with somebody else's property. Certainly, you can infer that he knew it wasn't his property. And, so, yes, there is evidence that he committed a theft, or even that he was an accomplice to that theft. But, the State has to prove that he had the intent to commit the crime charged — robbery.
(Emphasis added).
In both Kenneth's and Howard's cases the accomplice liability had to be based on the robbery. Their arguments that the jury could have improperly convicted them based on the uncharged crimes relating to drugs or theft is not supported by the record. The prosecution clearly indicated that the methamphetamine sale was not an issue in the case. Defense counsel for Kenneth clearly indicated that the jury could not convict based on a theft. On this record, we conclude beyond a reasonable doubt that Kenneth's and Howard's cases were tried and argued so that the jury was aware that accomplice liability had to be based on the specific crime charged. The erroneous accomplice liability instruction given in this case was harmless error.
B. Offender Score Calculation
Kenneth and Howard appeal the calculation of their offender scores in light of State v. Smith, 144 Wn.2d 665, 30 P.3d 1245 (2001). The State concedes that their offender scores should be recalculated. Both sentences should be remanded for recalculation.
VI. Conclusion
We affirm Kenneth's and Howard's convictions and reverse and remand both sentences for recalculation.
BECKER and AGID, JJ., concur.