Opinion
No. 36278-3-II.
July 8, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 06-1-02477-0, John F. Nichols, J., entered April 26, 2007.
Affirmed in part and remanded by unpublished opinion per Bridgewater, J., concurred in by Houghton, J.; Quinn-Brintnall, J., concurring separately.
James Clay Spinks appeals his domestic violence convictions for first degree arson, residential burglary and fourth degree assault. He also appeals his conviction for interfering with reporting of domestic violence. He raises issues regarding the admission of evidence of other offenses under ER 404(b), witness opinion as to his guilt, and sentencing. Pro se, he raises various issues concerning sufficiency of the evidence, trial irregularity, and ineffective assistance. We affirm the convictions but remand for resentencing.
Facts
Around 7:00 am on Christmas Day 2006, Helen Turner was awakened by a knock on the front door of her home in Vancouver, Washington. She opened the door to find James Spinks standing on her threshold. Turner and Spinks had had a stormy eight-month romantic relationship. Turner would later testify that the relationship had soured when Spinks became physically abusive. In fact, on October 16, 2006, she had called the police and had Spinks arrested after he came to her house, got into an argument with her, and hit her leaving bruises on her face. Although they still had contact after this incident, she had told him not to come to her house.
When Turner opened the door on Christmas Day, she did not invite Spinks into her house. After a brief conversation, Spinks allegedly grabbed Turner and dragged her into the street by the hair injuring her knees as they scraped along the road. When she pulled out a cell phone to call the police, Spinks took the phone from her and smashed it on the ground, breaking it. Turner then got away from Spinks and ran across the street to her neighbor's house for help. This house belonged to Heidi and Kasey Jones. Mr. Jones answered the door and Turner asked him for help. He offered his cell phone, but Turner asked him to come over and ask Spinks to leave; he finally agreed and went back inside to get dressed. This took about 5 to 10 minutes. When Turner and Mr. Jones started to go back to Turner's house, they saw Spinks running away and smoke pouring out of Turner's house.
Mrs. Jones then used her cell phone to call 911 and report the fire. Mr. Jones and another neighbor ran into Turner's house and found Turner's bed and items on it engulfed in flames. The house was filled with smoke and the men retreated once they determined that no one else was inside.
Within minutes, firemen arrived and put out the fire. Police also arrived and arrested Spinks within half a mile of Turner's house. Spinks was carrying Turner's broken cell phone and a lighter. He waived his right to remain silent and talked with police asking them to tell Turner that he was sorry for the things he had said to her and that he wanted to apologize for destroying her property. A later fire investigation revealed that the fire had been intentionally set at the foot of Turner's bed by use of an open flame such as a cigarette lighter, and took only a matter of seconds to start.
The State ultimately charged Spinks with one count of first degree arson, one count of residential burglary, one count of fourth degree assault, and one count of interfering with the reporting of a domestic violence offense. The first three counts included an allegation that the offense was committed against a family or household member.
Prior to trial, the court held an ER 404(b) hearing to determine the admissibility of evidence regarding Spinks's prior acts of domestic violence; and a CrR 3.5 hearing to determine the admissibility of Spinks's custodial statements to police. Turner testified at the former hearing and the court ruled that evidence of only one incident occurring on October 16, 2006, would be admissible to show the context of the relationship with a limiting instruction that the evidence was being offered only to show Turner's state of mind on Christmas Day 2006. The court additionally ruled that the recording of the 911 call was admissible as a present sense impression of the caller for purposes of describing events as they appeared to that caller and not for the truth of the matter asserted. The court also ruled that Spinks's custodial statements to police were made after a knowing waiver of his rights and were admissible.
At the ensuing trial, the State called witnesses including Turner, Mr. and Mrs. Jones, the responding and interrogating police officers, and the fire inspector, who testified to events as above described. The trial court also permitted the State to play the recording of the 911 call to report the fire and Officer Doug Keldsen's testimony regarding the report to which he was responding on Christmas Day. Defense counsel objected and the court instructed the jury that the officer's testimony was being admitted to show why he had responded. The court also allowed testimony from Turner over defense objection that Spinks had previously physically abused her on October 16, 2006, and the court admitted a photograph showing Turner's bruised face on that occasion.
The jury convicted Spinks as charged, with special verdicts finding that Spinks had committed the arson, burglary, and assault (counts 1-3) against a family or household member. At the subsequent sentencing, the State argued for a maximum sentence of 46 months contending that the arson and burglary counts did not merge. The defense argued that an appropriate sentence would be within the standard range of 26 to 34 months. The court imposed a 40-month sentence — a 30-month standard range sentence for the arson conviction and a 10-month standard range sentence for the burglary conviction, but ran the sentences consecutively. Spinks timely appealed.
Discussion Admissibility of Prior Domestic Violence
Spinks first argues that he was denied a fair trial because the trial court admitted evidence regarding a prior incident of domestic violence in violation of ER 404(b). We disagree.
Spinks raises the same contention in his pro se statement of additional grounds for review (SAG).
As noted, the trial court permitted the State to present evidence of a prior domestic violence incident occurring on October 16, 2006, to which police were called. The court permitted the State to introduce one photograph showing how Spinks had injured Turner's face to establish that the incident had taken place and as bearing on Turner's state of mind toward Spinks and her conduct toward him the following December. ER 404(b) prohibits evidence of prior acts to prove the defendant's propensity to commit the charged crime. See State v. Cook, 131 Wn. App. 845, 849, 129 P.3d 834 (2006). But evidence of prior acts may be admitted for other limited purposes, including "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." See ER 404(b). The permitted purposes listed in ER 404(b) "are not exclusive." Cook, 131 Wn. App. at 849 (citing State v. Kidd, 36 Wn. App. 503, 505, 674 P.2d 674 (1983)). ER 404(b) "was intended not to define the set of permissible purposes for which bad-acts evidence may be admitted but rather to define the one impermissible purpose for such evidence." Cook, 131 Wn. App. at 849. The range of relevancy outside the ban is "almost infinite." Cook, 131 Wn. App. at 849 (internal quotations and citations omitted).
The test for admitting prior acts under ER 404(b) is whether the evidence serves a legitimate purpose, is relevant to prove an element of the crime charged, and, on balance, the probative value of the evidence outweighs its prejudicial effect. Cook, 131 Wn. App. at 850. See also State v. DeVries, 149 Wn.2d 842, 848, 72 P.3d 748 (2003). Evidence is relevant if it has a tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. See ER 401. Appellate courts review a trial court's decision to admit ER 404(b) evidence for abuse of discretion. Cook, 131 Wn. App. at 850.
Further, a defendant's prior acts of domestic abuse against the alleged victim may be admissible under ER 404(b). In Cook, this court held that when an alleged victim "acts inconsistently" with a disclosure of abuse, such as by failing to timely report the abuse or by recanting or minimizing the accusations, evidence of prior abuse is relevant and potentially admissible under ER 404(b) "to illuminate the victim's state of mind at the time of the inconsistent act." Cook, 131 Wn. App. at 851. See also State v. Powell, 126 Wn.2d 244, 261, 893 P.2d 615 (1995) (evidence of previous disputes or quarrels between the accused and the accuser tends to show the relationship of the parties and their feelings toward each other, and often bears directly upon the state of mind).
The Cook court defined "an `inconsistent' act" as "one that taken out of its situational context would appear incongruous to a jury and require explanation." See Cook, 131 Wn. App. at 851 n. 3.
In Cook, an alleged domestic violence victim recanted at trial her allegation that during an argument at home the father of her child had kicked her hand, breaking her finger. The trial court had admitted evidence of prior domestic abuse with a limiting instruction directing the jury to consider the evidence "for the limited purpose of assessing the credibility of [the alleged victim]." Cook, 131 Wn. App. at 849 (emphasis added). The Cook court held that the "trial court had discretion to admit evidence of [the defendant's] prior domestic abuse against [the alleged victim] under ER 404(b), provided that the court gave an adequate limiting instruction." Cook, 131 Wn. App. at 853 (footnote omitted). The Cook court reversed and remanded for a new trial because the limiting instruction was inadequate. Cook, 131 Wn. App. at 854.
Cook stands for the proposition that evidence of prior domestic violence may be admitted to explain inconsistencies in the victims' conduct. See Cook, 131 Wn. App. at 851. The inconsistency in Cook was the victim witness's recantation of the alleged domestic abuse incident. The inconsistency in the present case is Turner's conduct on the day of the incident — opening the door for Spinks on Christmas Day, but not letting him in. Since the evidence otherwise indicated that Spinks and Turner had an ongoing relationship and Turner continued to meet Spinks in public, Turner's actions did not make sense and the State offered evidence of the October altercation to show Turner's state of mind on the day in question. Accordingly, the evidence was offered to explain Turner's attempts to limit her continuing relationship with Spinks, and why she did not let Spinks in her house, but opened the door in an effort to appease him, hoping to make him leave the premises.
The State additionally characterized the evidence as falling within the res gestae exception to ER 404(b). That exception permits the admission of evidence of other crimes or misconduct where it is a link in the chain of an unbroken sequence of events surrounding the charged offense in order that a complete picture be depicted for the jury. See State v. Acosta, 123 Wn. App. 424, 442, 98 P.3d 503 (2004). The trial court's ruling simply stated that the evidence was admissible to show "the context of their relationship," why Turner was afraid of Spinks, and why, despite their continuing relationship, Turner would not let Spinks into the privacy of her home. See 1 RP at 32.
Under Cook, that evidence was admissible under a proper limiting instruction. The trial court here gave the jury instruction 18, which read: "Evidence of an October 16, 2006 incident or history of domestic violence between Helen Turner and James Spinks may be considered by you only to explain Helen Turner's state of mind towards James Spinks on December 25, 2006 and for no other purpose." CP at 74. Unlike the instruction in Cook, the limiting instruction here was adequate. We must assume that the jury followed the courts instructions. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001). We hold that the trial court did not abuse its discretion in admitting the evidence of prior domestic violence in this instance.
Witness's Opinion as to Defendant's Guilt
Spinks next argues that he was denied an impartial jury when the State on two occasions elicited an opinion as to his guilt from witnesses. We disagree.
The two instances Spinks relies upon are the admission of the 911 tape recording of the call by neighbor Heidi Jones reporting the fire at Turner's house, and Officer Keldsen's testimony regarding the report of the fire to which he responded. The recording stated in relevant part as follows:
[911] Operator: 911, how can I help you?"
MS. Jones: We've got a domestic and a fire in a house now.
THE Operator: You have a fire at your house?
MS. Jones: Not my house. It's across the street with smoke pouring out of the house.
THE Operator: Okay. What is the address there? [Jones gives address]. . . .
THE Operator: Did you say smoke and flames?
MS. Jones: Yes. The smoke is pouring out of the house. The guy — it was a domestic. The lady came over here to use the phone and he started the house on fire.
2 RP at 114-15. Defense counsel objected to the recording's admission as hearsay. The court ruled that it qualified as the caller's present sense impressions, noting that it was not offered for the truth of what was asserted, but to simply establish what was being told to Jones at the time, what she herself observed, and why she was making the 911 call.
Officer Keldsen testified over defense counsel's hearsay objection that he responded to the report of a fire. He stated: "Okay. Responded to the call. The complainer, the person that had called 911, referred that the fire was — there was a fire at the house, that it was set intentionally, and there was a description of the person — the suspect and the direction of travel." 2 RP at 188. The trial court overruled the objection and instructed the jury that the testimony was not being offered for the truth of the matter stated, but only to show the background of why Officer Keldsen responded to the call. Neither piece of evidence was offered for the truth of the matter asserted therein, and the trial court sustainably rejected the only objection offered at the time — hearsay.
Now, Spinks contends that each statement qualifies as an impermissible statement of opinion by a witness as to his guilt. Whether testimony constitutes an impermissible opinion on guilt or a permissible opinion pertaining to an ultimate issue will generally depend on the specific circumstances of each case, including (1) the type of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of defense, and (5) the other evidence before the trier of fact. See City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993). See also State v. Barr, 123 Wn. App. 373, 381, 98 P.3d 518 (2004), review denied, 154 Wn.2d 1009 (2005).
Here, both assertions of error involve references to Mrs. Jones's 911 call. Neither the 911 call, nor Officer Keldsen's description of the disturbance report was offered at trial as opinion as to Spinks's guilt. They were offered for the limited purpose of establishing the officer's reason for going to the scene and Jones's reason for making the 911 call. Both witnesses were subject to cross-examination and Mrs. Jones was vigorously questioned about what she actually saw. Spinks was convicted on the strength of the other evidence offered at trial, including Turner's testimony describing how Spinks injured her and broke her cell phone, Turner's statements to police at the scene that she saw Spinks go back into her house as she fled to her neighbors house, and Spinks's statements to police after his arrest that he wanted to apologize to Turner for destroying her property. On this record, the trial court did not abuse its discretion in admitting the evidence about which Spinks now complains.
Consecutive Sentences
Spinks next argues that the trial court erred in imposing consecutive sentences. At sentencing, the State argued that the defendant's standard range for the first degree arson conviction (count 1) was 26 to 34 months, and the residential burglary conviction (count 2) was 6 to 12 months. Contending that the crimes "do not merge," the State asked for a sentence at the top of each range, for a total of 46 months. RP (April 26, 2007) at 4. Defense counsel responded that an applicable anti-merger statute gave the court discretion to not merge burglary with the other crime committed during the burglary for purposes of calculating the offender score. Because the burglary and the arson did not merge, the defense contended, the scoring was one instead of zero, the standard range for the arson count was 26 to 34 months, the standard range for the burglary count was 6 to 12 months, and the burglary sentence would run concurrently. Accordingly, the defense asked the court to impose a sentence within the 26 to 34 month range. The court imposed a sentence of 30 months for the arson and 10 months for the burglary, to run consecutively for a total sentence of 40 months.
The State also asked that the remaining misdemeanor convictions (counts 3 and 4) run consecutively to the felonies with the entire 365-day sentence on these counts suspended.
The burglary anti-merger statute, RCW 9A.52.050, provides: "Every person who, in the commission of a burglary shall commit any other crime, may be punished therefor as well as for the burglary, and may be prosecuted for each crime separately."
The court also imposed 365 days for the misdemeanors, suspended with a period of probation.
On appeal, Spinks argues that because the exceptional 40-month consecutive sentence was imposed without notice, it was improper. He relies on State v. Theroff, 95 Wn.2d 385, 392, 622 P.2d 1240 (1980), for the proposition that "[w]hen prosecutors seek enhanced penalties, notice of their intent must be set forth in the information." He is correct that the amended information contains no such notice.
In response, the State agrees with the defense that the case should be remanded for resentencing, noting only that there was a "misunderstanding" about how the burglary anti-merger statute was to be applied for sentencing purposes. Br. of Resp't at 13. We accept the State's concession and remand for resentencing.
Pro Se Issues
Spinks filed a pro se statement listing additional grounds for review. Several of his allegations are vague or seemingly irrelevant. While an appellant who files a statement of additional grounds need not cite to cases or the record, he must nevertheless provide sufficient details for the court to review his objection. RAP 10.10(c) provides that an appellate court "will not consider a defendant/appellant's statement of additional grounds for review if it does not inform the court of the nature and occurrence of alleged errors." Moreover, this court "is not obligated to search the record in support of claims made in a defendant/appellant's statement of additional grounds for review." RAP 10.10(c).
Spinks first makes several factual allegations, impliedly asserting that the evidence was insufficient to support his conviction. A challenge to the sufficiency of the evidence admits the truth of the State's evidence. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In assessing the sufficiency of the evidence, the court must view the evidence in the light most favorable to the State and decide whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Luther, 157 Wn.2d 63, 77, 134 P.3d 205, cert. denied, 127 S. Ct. 440 (2006).
Spinks contends that the prosecutor's witnesses never saw him enter Turner's house. That is not so. Testimony at trial indicated that as Turner fled to her neighbor's house, she saw Spinks enter her home and close the door. From her neighbor's house across the street, Turner saw Spinks leave her house and walk down the street. Spinks next asserts that there was no fire or smoke when he was inside or outside of Turner's house. That too is not so. The evidence showed that as Spinks left Turner's house and walked down the street, smoke began pouring out of Turner's house. Spinks further contends that the police failed to test his clothes and hands for smoke, that he cooperated with officers during questioning, and he asks how officers could have apprehended him only two blocks from Turner's house if he had been running from the scene. None of these contentions effectively challenge any of the evidence presented at trial or otherwise suggest that a new trial is warranted.
Spinks next complains that the trial judge and the attorneys "stopped many times all through the trial, making the jury leave out of the court room [sic]." Statement on Additional Grounds (SAG) at 1. He also contends that the trial judge "[d]eleted some of the statements that [were] said in trial." SAG at 1. But Spinks fails to show how he was prejudiced by these events. In any event, sidebar conferences out of the jury's hearing and the court's sustaining of objections are not trial irregularities that would warrant the granting of a mistrial, even had such a motion been made. Cf. State v. Post, 59 Wn. App. 389, 395, 797 P.2d 1160 (1990), aff'd, 118 Wn.2d 596, 826 P.2d 172, 837 P.2d 599 (1992) (trial court should grant a requested mistrial for trial irregularity only where the irregularity deprived the defendant of a fair trial).
Finally, Spinks's appears to make an ineffective assistance claim, alleging that his trial counsel failed to sufficiently question Turner regarding her character, and her whereabouts during "the crime," presumably meaning the arson. SAG at 2. Spinks alleges that Turner uses methamphetamine and has convictions for identity theft, and that defense counsel should have brought this out during questioning. He also contends that he actually stayed with Turner the night before the incident and left the next morning when she started arguing with him.
To prevail on a claim of ineffective assistance of counsel, an appellant must prove both (1) that his attorney's performance was deficient and (2) that this deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Deficient performance is that which falls below an objective standard of reasonableness. State v. Horton, 116 Wn. App. 909, 912, 68 P.3d 1145 (2003). But appellate courts begin with a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Counsel's legitimate trial strategy or tactics cannot provide a basis for a claim of ineffective assistance of counsel. State v. Aho, 137 Wn.2d 736, 745, 975 P.2d 512 (1999). To establish prejudice, the appellant must show that counsel's performance was so inadequate that there is a reasonable probability that, given competent counsel, the result would have differed, thereby undermining this court's confidence in the outcome of the trial and requiring that it begin anew. Strickland, 466 U.S. at 694.
Spinks cannot meet this burden. Whether and how to question a witness falls within the parameters of legitimate trial strategy and tactics and thus provides no basis for a claim of ineffective assistance. See In re the Pers. Restraint of Stenson, 142 Wn.2d 710, 735, 16 P.3d 1 (2001); State v. Gallagher, 112 Wn. App. 601, 612, 51 P.3d 100 (2002), review denied, 148 Wn.2d 1023 (2003). Moreover, his assertion that he had stayed the night at Turner's house was presented to the jury by way of his statement to police. The jury's rejection of that contention inheres in the verdict.
In sum, none of Spinks's contentions challenging his convictions has merit. For the reasons discussed above, we affirm his convictions and remand for resentencing.
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.
HOUGHTON, PJ., concur
Based on the State's concession that an error occurred in James Clay Spinks's sentencing, I concur in the result of the majority opinion. I also write separately to express my view that Spinks's challenge to what he characterizes as an impermissible statement of opinion regarding his guilt has not been preserved for our review. In State v. Kirkman, 159 Wn.2d 918, 155 P.3d 125 (2007), our Supreme Court reiterated the longstanding rule that a party may assign evidentiary error on appeal only on a specific ground made at trial. 159 Wn.2d at 926 (citing State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert denied, 476 U.S. 1020 (1986)). Accordingly, because Spinks objected to the admission of the information and statements from Heidi Jones's 911 call on the grounds of hearsay, I would not address the merits of Spinks's argument that the statements were an impermissible comment on the issue of his guilt. I agree with the remainder of the majority opinion in all respects and concur in the result.