Opinion
No. 34674-5-II.
April 3, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-04866-4, Brian M. Tollefson, J., entered March 10, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Houghton, C.J., concurred in by Quinn-Brintnall and Van Deren, JJ.
Joshua Farkas appeals from three convictions: felony violation of a protection order, fourth degree assault, and third degree malicious mischief, all arising out of a domestic dispute at his ex-girl friend's home. He raises various assignments of error. Because the State did not present sufficient evidence that he caused at least $50 damage to the property, we reverse his conviction for third degree malicious mischief as a gross misdemeanor and remand for entry of judgment and resentencing as a simple misdemeanor. We affirm the conviction in all other aspects.
FACTS
In fall 2005, Farkas lived off and on with Zuleika Dunning. At the time, he was subject to a restraining order prohibiting him from contacting her. She was also pregnant with his child.
On September 22, Dunning was moving her belongings to her sister's house. Her friend Marquita Sanders came over to help her. Sometime in the evening, Farkas arrived at the house. He angrily told them to put the furniture down, saying nobody could remove anything from his house. Sanders continued moving furniture outside.
After Sanders put a dresser in the moving truck, she realized that Dunning was not outside with her. She looked around and realized Farkas was not outside either. As she approached the front door she heard Farkas and Dunning arguing upstairs. She heard a slapping noise and Dunning shouting at Farkas not to put his hands on her.
Sanders ran upstairs and tried to go into the room, but somebody seemed to be blocking the door. When she entered the room, Dunning and Farkas stood on opposite sides of the room. Both were breathing hard and Dunning was holding her mouth. When Sanders asked why he hit her, Farkas claimed Dunning was lying.
Sanders accompanied Dunning outside. When Farkas went back upstairs toward the master bedroom, Dunning was worried he would damage her possessions. They heard a breaking noise. Upstairs, they saw that a dresser was tipped over and the attached mirror was broken.
Sanders told Dunning that they needed to hurry up and get out of the house. Hearing a noise downstairs, they saw Farkas trying to throw the vacuum cleaner into the television. They managed to stop him and Sanders called 911. Farkas left before law enforcement arrived.
Deputy Sheriff Ingeborg Carey arrived about 15 minutes after the 911 call. She spoke with Sanders and Dunning and saw that Dunning had a small cut on the inside of her lip. She also saw the overturned dresser and the broken mirror. Dunning told her that she and Farkas had argued and that Farkas slapped her in the face and tipped over the dresser.
A few days after the incident, Deputy Sheriff Jason Tate interviewed Dunning. She told him her story and completed a written statement about the incident. Tate also spoke with Sanders and she also gave a written statement. Tate then arrested Farkas.
The State charged Farkas with fourth degree assault, third degree malicious mischief, and violating a domestic violence court order with two previous convictions. He stipulated that at the time of the incident, a protection order restrained him from contacting Dunning. He also stipulated to three prior convictions of violating protection orders.
A jury heard the matter. Sanders testified consistent with her prior statements about the incident. But Dunning stopped cooperating with the prosecution and changed her story at trial. She claimed that Farkas was never at the house on September 22. She testified that she decided to make up the incident when she called 911.
According to Dunning, the dresser mirror was already broken. She also stated that her lip was cut when her daughter bumped into her mouth while they were playing. Although the jury heard a tape of the 911 call in which Dunning was shouting, "You're not even supposed to be here," and "You just hit me," Dunning testified nobody was there. 4 Report of Proceedings (RP) at 132. She explained that she was upset because Farkas wanted to date Sanders, and she made the story up to get Farkas in trouble.
Sanders previously testified that the mirror was "fine" and that she had seen it in the bedroom just before Farkas arrived at the house. 3 Report of Proceedings at 94.
Carey also testified about her investigation of the incident. During her testimony she referred to Dunning several times as the "victim." 3 RP at 45, 46, 47, 50. Farkas did not object.
During trial, the State introduced photographs of the damaged dresser. But the State did not present any evidence estimating the cost of the damage. In closing argument, the State Page 4 claimed the jurors could find the damage was at least $50 by applying their "life experience and common sense." 4 RP at 219.
The jury convicted Farkas of all three counts and found in a special verdict that he had two prior convictions of violating protection orders. The trial court sentenced him to seven months for the protection order violation, five months to be served consecutively for the assault and 365 days suspended for the malicious mischief. Farkas appeals.
ANALYSIS Opinion of Guilt
Farkas contends that by referring to Dunning as the "victim," Carey expressed an opinion about his guilt and invaded the province of the jury.
On appeal, ordinarily we will not consider errors that were not objected to in the trial court. State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988); RAP 2.5(a). But we make an exception for manifest errors affecting a constitutional right. State v. Lynn, 67 Wn. App. 339, 342, 835 P.2d 251 (1992); RAP 2.5(a)(3).
Witnesses may not offer opinions on the defendant's guilt, either directly or by inference. State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987).
Whether testimony constitutes an impermissible opinion on guilt or a permissible opinion embracing an "ultimate issue" will generally depend on the specific circumstances of each case, including the type of witness involved, the specific nature of the testimony, the nature of the charges, the type of defense, and the other evidence before the trier of fact.
City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993).
Improper opinion testimony violates the defendant's constitutional right to a jury trial by invading its fact-finding province. State v. Dolan, 118 Wn. App. 323, 329, 73 P.3d 1011 (2003). Accordingly, Farkas may raise the issue for the first time on appeal. Dolan, 118 Wn. App. at 330.
Washington courts view conservatively claims that testimony constitutes an opinion on guilt. Heatley, 70 Wn. App. at 579. Testimony that does not directly comment on the defendant's guilt or the veracity of a witness is helpful to the jury and is based on inferences from the evidence is not improper opinion testimony. Heatley, 70 Wn. App. at 578. "The fact that an opinion encompassing ultimate factual issues supports the conclusion that the defendant is guilty does not make the testimony an improper opinion on guilt." Heatley, 70 Wn. App. at 579.
In Heatley, Division One considered whether a police officer's testimony that Heatley was "`obviously intoxicated'" and "`could not drive a motor vehicle in a safe manner'" constituted an improper comment on the defendant's guilt. 70 Wn. App. at 577. Because the evidence supported the opinion and the testimony did not contain a direct opinion of Heatley's guilt, the court concluded the testimony was not improper. Heatley, 70 Wn. App. at 579-80.
Here, Farkas complains of the following exchanges:
Q How is it that you came upon that event, how did you learn about it?
A The victim had called 911 and I was dispatched to the call.
. . . .
Q And how was [Dunning] involved based on what your investigation revealed?
A She was the victim.
. . . .
Q Other than taking statements from these two ladies, what else did you do?
A I took photos of the damage that the victim told me the suspect had caused.
. . . .
A I took the pictures.
Q And . . .
A And that's my victim.
3 RP at 45, 46, 47, 50.
Applying the factors set forth in Heatley, Carey's statements that Dunning was the "victim" do not amount to a comment upon Farkas's guilt. By calling Dunning the "victim," Carey did not express an opinion that an assault occurred or that Farkas committed it; she merely told the jury that Dunning reported that she was the victim of a domestic dispute. The truth of the assault allegation was left to the jury. The characterization was a reasonable inference from the evidence that Dunning told 911 she was the victim of an assault, Dunning told Carey she was the victim, Dunning had a cut on her lip where she reported being struck, and Sanders's account of the events was consistent with Dunning being the victim of an assault.
We agree that the better practice would be to avoid calling somebody a "victim" in a criminal trial. But under Heatley, Carey's testimony was not improper. Farkas's argument fails.
Our holding also disposes of Farkas's ineffective assistance of counsel argument. Because deciding whether to object is an example of a strategic decision, "[o]nly in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). Counsel's failure to object to Carey's testimony is therefore not deficient performance as required for Farkas's ineffective assistance of counsel claim. See generally State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Moreover, because the testimony was not improper, any objection likely would have been fruitless. Farkas has failed to show a reasonable probability that the outcome would have been different had counsel objected. See State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
Sufficiency of the Evidence
Farkas also argues that insufficient evidence supports the convictions on all three charges.
The standard for determining sufficiency of the evidence on appeal is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In challenging the sufficiency of the evidence, the appellant admits the truth of the State's evidence and all inferences that can reasonably be drawn from it. State v. McNeal, 145 Wn.2d 352, 360, 37 P.3d 280 (2002). Circumstantial and direct evidence have equal weight, and criminal intent may be inferred from conduct. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004). We defer to the fact finder on credibility determinations and do not review them on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
A. Fourth Degree Assault
Farkas argues that no reasonable jury could have determined beyond a reasonable doubt that he was present at Dunning's home and struck her.
To prove assault in the fourth degree, the State had to show that Farkas assaulted another under circumstances not amounting to assault in the first, second, or third degree. RCW 9A.36.041(1). Because "assault" is not defined in the Washington Criminal Code, courts refer to the common law to provide the elements of the crime. State v. Aumick, 126 Wn.2d 422, 426 n. 12, 894 P.2d 1325 (1995). Assault can be proven in three ways: (1) an attempt, with unlawful force, to inflict bodily injury on another; (2) an unlawful touching with criminal intent; and (3) putting another in apprehension of harm, regardless of whether the actor intends to inflict or is capable of inflicting harm. Aumick, 126 Wn.2d at 426 n. 12.
Viewing the evidence in the light most favorable to the State, sufficient evidence supports the jury's conclusion that Farkas assaulted Dunning by striking her in the face. Sanders's testimony supported an inference that Farkas hit Dunning when she stated that she heard a slapping noise, followed by Dunning shouting at Farkas not to put his hands on her. Dunning told the 911 dispatcher and the investigating officers that Farkas struck her in the mouth and she had a visible injury. That Dunning recanted her story at trial is not dispositive, as the jury was entitled to find her prior reports more credible.
Based on Sanders's testimony and Dunning's statements at the time of the incident, the jury had sufficient evidence to find that Farkas assaulted Dunning by striking her. Farkas's argument fails.
B. Violation of a No-Contact Order Similarly, Farkas argues that the State failed to prove he was present at Dunning's house on the date of the incident. Criminal violation of a no-contact order requires proof that the defendant knew of the order and willfully violated its restrictions. RCW 26.50.110(1); see also State v. Sisemore, 114 Wn. App. 75, 78, 55 P.3d 1178 (2002).Here, Farkas stipulated that he signed a court order prohibiting him from having contact with Dunning on the date of the incident. Because Farkas signed the order, the jury could reasonably infer that he knew of the order and its restrictions. Further, substantial evidence showed that Farkas went to Dunning's home and argued with her while the order was in effect. Viewing the evidence in the light most favorable to the State, it was reasonable for the jury to find that Farkas violated the no-contact order.
C. Third Degree Malicious Mischief
Last, Farkas contends that because the State presented no evidence of the value of the broken mirror, the jury could not have reasonably found that the damage exceeded $50. Accordingly, he argues the malicious mischief conviction must be reversed.
A conviction for third degree malicious mischief requires proof that the defendant knowingly and maliciously caused physical damage to another's property. RCW 9A.48.090(1)(a). The crime is a gross misdemeanor if the damage exceeds $50; if not, then the crime is a misdemeanor. RCW 9A.48.090(2). In this case, the State charged Farkas with the gross misdemeanor, alleging that the damage exceeded $50.
There was sufficient evidence for the jury to conclude that Farkas willfully damaged Dunning's property. Sanders testified that Farkas was upstairs alone when she heard a crash and discovered the dresser was knocked over and the mirror shattered. Sanders had seen the dresser earlier and it was undamaged. The jury was entitled to disbelieve Dunning's claim that the mirror was already broken. Sanders's testimony provided sufficient evidence that Farkas damaged Dunning's property.
Further, Sanders also testified that Farkas was angry about Dunning removing items from the house and that he tried to throw a vacuum cleaner into the television. The jury could have reasonably inferred from this evidence that Farkas acted willfully when he tipped over the dresser and broke the mirror.
But the State presented no evidence from which the jury could reasonably conclude that the damage to the broken mirror exceeded $50. Absent testimony as to the dollar amount of the property damage, the gross misdemeanor conviction cannot be upheld. See State v. Sanders, 65 Wn. App. 28, 32, 827 P.2d 354 (1992). Where, as here, the jury was provided only with photographs of the damaged property, its estimate of the value of the damage would be purely speculative. Because the State did not present evidence that would allow a reasonable jury to find beyond a reasonable doubt that Farkas caused more than $50 in property damage, the gross misdemeanor conviction should be reversed.
But when the evidence is sufficient to support conviction of a lesser crime, we may remand the case for entry of judgment and sentence on the lesser crime. State v. Atterton, 81 Wn. App. 470, 473, 915 P.2d 535 (1996). Misdemeanor malicious mischief in the third degree contains the same elements as the gross misdemeanor charge, except that the property damage need not exceed $50. RCW 9A.48.090(2). Because the evidence was sufficient to prove that Farkas willfully damaged Dunning's property, we remand for entry of judgment and sentence on the malicious mischief charge as a simple misdemeanor.
Affirmed in part, reversed in part, and remanded.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J., VAN DEREN, J. Concur.