No. 28721-8-IIThe Court of Appeals of Washington, Division Two.
Filed: July 8, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Jefferson County Docket No: 02-1-00011-3 Judgment or order under review Date filed: 04/19/2002
Counsel for Appellant(s), James M. Bendell, Attorney at Law, P.O. Box 587, Port Townsend, WA 98368-0587.
Counsel for Respondent(s), Michael Edward Haas, Jefferson Co Pros Office, P.O. Box 1220, Port Townsend, WA 98368-0920.
MORGAN, J.
Jeremy K. Harford appeals convictions and exceptional sentences for second and third degree assault. We affirm. On December 26, 2001, Harford was drinking at Bettina McMasters’s home. Also present were McMasters and Michael Ingram. While McMasters was taking a nap, Harford and Ingram started to argue. McMasters woke up in time to see Harford hit Ingram. Ingram fell, and Harford went over and began banging Ingram’s head into the floor. As McMasters was trying to pull Harford off, he hit her and kicked Ingram. Ingram crawled outside, but Harford followed and kicked him repeatedly. McMasters yelled at Harford to leave, and he did. Ten minutes later, however, he returned and resumed kicking Ingram. When McMasters yelled at Harford to stop, he began hitting her. A few moments later, he went home to his trailer and went to sleep. McMasters called 911. When Deputies Tracer and Apeland arrived, they found Ingram covered with blood. His left eye was swollen shut and his jaw was swollen on the right side. He exuded a strong odor of alcohol. He had suffered serious injuries and was taken to the emergency room.[1] The deputies went to Harford’s trailer and tried to wake him. He had blood around his mouth and exuded a strong odor of alcohol. When he awoke, he kicked at the deputies, headbutted the patrol car several times, and made a number of obscene statements. On the way to jail, he was advised of his Miranda[2]
rights, and he then made more statements. On January 10, 2002, the State charged Harford with the second degree assault of Ingram and the third degree assault of McMasters. A jury trial followed, and Harford was found guilty as charged. The court imposed an exceptional sentence of 36 months, and Harford filed this appeal.
I.
The first issue concerns testimony about Harford’s conduct toward the deputies at the time of his arrest. Deputy Tracer testified that Harford resisted, became rude and agitated, and used obscenities. On the way to jail, Harford continued to speak obscenely. The trial court admitted the testimony as part of the `res gestae,’ and Harford assigns error to that ruling. Regardless of how we might have ruled, we decline to upset the trial court’s exercise of discretion.[3] It was not unreasonable to characterize the disputed testimony as part of an ongoing event that later became the basis for the charges (i.e., as part of the `res gestae’), and not as a separate crime, wrong, or act within the meaning of ER 404.[4] Moreover, intent can continue from one time to another if the former is not too remote from the latter; very little time elapsed between the charged assaults and the conduct that the disputed testimony described;[5] and thus the disputed testimony showed Harford’s intent at the time of the charged assaults without relying on his propensities. Finally, any error was obviously harmless. The remaining evidence was overwhelming, and the outcome of the trial would have been the same with or without the disputed testimony.[6]
II.
The next issue concerns the prosecution’s attempts to secure medical witnesses for trial. The prosecutor’s legal assistant testified that the State had tried without success to call the doctors who had treated Ingram at the emergency room. The purpose was to forestall any `missing witness’ argument that might otherwise have been made. Harford objected, the trial court overruled, and Harford now assigns error to that ruling.
When a party fails to call a witness who is `peculiarly available’ to him or her,[7] and the witness’ testimony would be not be cumulative or unimportant,[8] an inference arises `that the witness’s testimony would have been unfavorable.’[9] The inference does not arise, however, if the party satisfactorily explains the witness’s absence,[10] as he or she is entitled to do.[11] That is all the State did here, and there was no error.[12]
III.
The next issue is whether Harford was entitled to reopen his case to show that McMasters was on court-ordered conditions of release not to possess or consume alcohol. He asked for that right, the trial court denied it, and he now appeals that ruling.
The trial court has discretion when deciding a motion to reopen, and we will not reverse absent an `abuse of discretion and prejudice resulting to the complaining party.’[13] Harford had access to McMasters’s records well before trial. McMasters admitted to alcohol possession that violated her court-ordered release, Harford was not barred from cross-examining her about her alcohol use that night, and a witness named Vivian Harford told the jury that McMasters had said she was drunk that night. The offered evidence was both tardy and insignificant, and we perceive neither an abuse of discretion nor prejudice.
IV.
The trial court allowed Harford to testify that Ingram had hit him first; that he had responded in self-defense; and that he had believed Ingram to be violent. The trial court allowed Vivian Harford to testify that Ingram had a reputation in the community for violence. The trial court did not allow testimony that Jeremy Harford had heard from others that Ingram had previously pulled a gun, had been violent on other occasions, and drank all the time. Harford now assigns error to that ruling. To analyze this assignment of error, it is necessary to distinguish character evidence offered to prove the victim’s conduct on the charged occasion (evidence offered to prove that the victim was the first aggressor) from character evidence offered to prove the accused’s state of mind (evidence offered to prove that the accused was in `reasonable apprehension’ of danger to himself or another). Character evidence offered to prove the victim’s conduct is admissible if the accused offers it[14] and it describes the victim’s reputation for a pertinent trait,[15] whether or not the accused knew of it at the time of the charged incident.[16] Character evidence offered to prove the accused’s state of mind is admissible if its value for that purpose is not substantially outweighed by the danger it will be used improperly (i.e., by the danger of `unfair prejudice’),[17] and if the defendant knew of it at the time of the charged incident.[18] The Washington Supreme Court summarized these rules long ago. In the 1922 case of State v. Adamo,[19] it said:
When a defendant seeks to excuse the killing on the ground of self-defense, it is competent for him to show the general reputation and character of the deceased for a quarrelsome disposition. The character of the deceased may be shown whether the defendant knew of it or not, because such testimony has a tendency to support the defendant’s contention that the deceased was the aggressor. In proving the character of the deceased, specific acts of violence may not be shown.[20]
The court then continued:
However, where the person accused is defending, in whole or in part, on the ground that at the time of the homicide he believed, and had good reason to believe, that he was in danger of his life, or great bodily harm, he may, in addition to the character evidence, show specific acts of the deceased which are not too remote and of which he had knowledge at the time of the killing with which he is charged. But such acts of the deceased may not be shown unless it appears they were brought to the knowledge of the defendant before he committed the crime charged.[21]
These concepts are embodied in the rules of evidence,[22] and they apply as much to assault as to homicide.[23]
The trial court did not err insofar as the excluded evidence was offered to show Ingram’s conduct at the time of the charged incident (or, more specifically, to show that Ingram was the first aggressor; or, most specifically, to show that Ingram hit Harford first). The excluded evidence described specific conduct, but only reputation evidence was admissible.[24]
The trial court did not err insofar as the excluded evidence was offered to show Harford’s state of mind (i.e., to show that Harford acted in reasonable apprehension of Ingram). Ingram testified that Harford hit him first. Harford testified that Ingram hit him first. If the jury believed Ingram, Harford had no right to use self-defense regardless of Harford’s state of mind. If the jury believed Harford, Harford had every right to use self-defense, regardless of his state of mind. Thus, the only real issue was Ingram’s and Harford’s conduct; Harford’s state of mind was of marginal importance, and the excluded evidence was of low utility (had low probative value) in the case. On the other hand, there was a high likelihood the jury would use the excluded evidence to show Ingram’s conduct as opposed to Harford’s state of mind. Such use would have been both improper and thus unfairly prejudicial. The trial court had discretion to balance,[25] and it did not abuse its discretion by ruling as it did.
V.
The next question is whether cumulative error resulted in an unfair trial.[26] Having found no error, we answer in the negative.[27]
VI.
The next question is whether the trial court erred by imposing an exceptional sentence of 36 months, rather than a standard-range sentence of 12-14 months. The State orally noted that after leaving Ingram in the driveway, bleeding from head to toe, Harford `came back, and it’s that coming back that the State contends is part of the deliberate cruelty. It’s violence that wasn’t anticipated by the Legislature.’[28] The court later entered one handwritten finding that stated: ‘[M]ultiple incidents of violence on victim [and] repeated beating of victim over prolonged period of time.’[29] Harford’s only challenge to his sentence is that `there were no multiple incidents.’[30] He cites virtually no authority, offers virtually no argument, and does not challenge the trial court’s finding that he repeatedly beat the victim over a prolonged period. In saying that Harford had repeatedly beat the victim over a prolonged period, the trial court was essentially saying that Harford had engaged in deliberate cruelty and gratuitous violence. Accordingly, we affirm the sentence.
Affirmed.
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.
HUNT, C.J. and ARMSTRONG, J., concur.
(1966).
(1999); e.g., State v. Callahan, 87 Wn. App. 925, 934, 943 P.2d 676
(1997). ER 405(b) does not apply because character is not an essential element of either assault or self-defense. Hutchison, 135 Wn.2d at 887; State v. Kelly, 102 Wn.2d 188, 194, 685 P.2d 564 (1984).