STATE v. MEENK,, 49980-7-I (Wash.App. 1-13-2003)

No. 49980-7-IThe Court of Appeals of Washington, Division One.
Filed: January 13, 2003 UNPUBLISHED OPINIONS

Appeal from Superior Court of King County, No. 011064921, Hon. Jay White, February 1, 2002, Judgment or order under review.

Counsel for Appellant(s), Nielsen Broman Koch Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.

Eric Broman, Nielsen Broman Assoc. Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.

Colby P. Haase, 1611 E Republican St, Seattle, WA 98112.

Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

Ian M. Goodhew, King County Pros Office, 516 3rd Ave, Seattle, WA 98104.

COX, A.C.J.

Brian Meenk appeals his conviction for third degree rape of a child. The trial court correctly concluded that its admission of testimony by Meenk’s sister, Kristen Bruhahn, that he was not welcome in her home was harmless error. And the trial court correctly concluded that Meenk’s California conviction for infliction of corporal punishment on a spouse or cohabitant was comparable to Washington’s crime of third degree assault. We affirm. Meenk’s sister, Bruhahn, asked a young friend to house-sit for her while she and her family went out of town. Meenk called his sister’s home several times while the house-sitter was there, and invited the sitter and her younger sister, M.V., to meet him. The three went to a park, drank two six-packs of hard lemonade, and eventually went to Bruhahn’s home. After M.V.’s sister went to bed in the master bedroom, Meenk and M.V. engaged in sexual intercourse. The next day, M.V. told her family that she had been raped.

The jury convicted Meenk of third degree rape of a child. He appeals.

EVIDENTIARY RULING
Meenk argues that the trial court erred in allowing his sister to testify that he would not have had permission to be in her home if she had been there. He further argues that the testimony was prejudicial error that materially affected the outcome of the trial. Although the statement was not admissible, its admission was harmless error.

Decisions as to the admissibility of evidence are within the discretion of the trial court, and are reversible only for abuse of that discretion.[1] A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds.[2] A court’s decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds if the factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard.[3] A decision based on a misapplication of law rests on untenable grounds.[4] Irrelevant evidence is not admissible.[5]
Evidence is relevant if it has `any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’[6]
`Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’[7]
Meenk was charged with third-degree rape of a child. A person is guilty of rape of a child in the third degree when the person has sexual intercourse with another who is at least fourteen years old but less than sixteen years old and not married to the perpetrator and the perpetrator is at least forty-eight months older than the victim.[8] Meenk conceded that he had sexual intercourse with M.V., and the State proved that their respective ages corresponded to the requirements of the statute.

The statute allows a defense to third degree rape of a child where the defendant can prove by a preponderance of the evidence that at the time of the offense the defendant reasonably believed the alleged victim to be at least 16, based upon declarations as to age by the alleged victim.[9]
Thus, the only question for the jury was whether Meenk’s testimony that M.V. and her sister did not tell him that M.V. was 15, and that M.V. told him she was 18, was more credible than their testimony to the contrary. In short, Bruhahn’s testimony about whether she would have allowed Meenk to be in her home had she been there has no relevance to this issue.

During Bruhahn’s testimony, the State asked a series of questions that were irrelevant to the question of Meenk’s defense. For example, the State asked whether she knew where her brother lived when she left for her trip, how she would describe her relationship with her brother, and how often she saw her brother. The State also asked whether her brother was welcome at her home. The court properly sustained objections to each of these questions. The last question the State asked her on direct examination was `If you had been home, would the Defendant have had permission to come in [sic] your home?’ Meenk again objected on grounds of relevancy. Contrary to its previous rulings, the court overruled the objection, and Bruhahn answered `no.’

Out of the presence of the jury, Meenk argued that the testimony on this last point was impermissible character evidence introduced to show that he was a bad person, and that the testimony was irrelevant because he was not charged with trespass or forcible compulsion. The trial court stated that it allowed the testimony because `I think it is relevant to the overall context, and does assist the jury in understanding the context of the alleged offense.’

On cross-examination, the State asked Meenk if he was welcome in his sister’s home. Meenk objected, and the court sustained this objection.

Before instructing the jury, the trial court reconsidered its prior ruling admitting Bruhahn’s testimony that her brother was not welcome at her home. The court noted that it had made inconsistent rulings, and stated that, on further reflection, it concluded that the question of whether he had permission to be in the home or was welcome there was `not relevant to any of the issues that the jury needs to decide.’ The court stated that the initial ruling that the testimony was admissible might be sustainable as evidence of res gestae and `related concepts.’ If it was error, the court continued, it was harmless error. The court then instructed the State not to mention this testimony in closing argument.

Meenk stated that he would neither request an instruction for the jury on the issue nor move to strike the testimony. He did not want to emphasize that testimony. Meenk did not move for a mistrial.

Meenk now argues that his sister’s testimony that he was not welcome in her home was irrelevant and prejudicial character testimony. We agree. Bruhahn’s testimony that Meenk was not welcome in her home could not assist the jury by making the probability of any fact of consequence in this case more or less likely. Meenk admitted to intercourse with M.V. The only question at issue was whether he reasonably believed she was sixteen or older. Thus, the trial court correctly concluded on reconsideration that the question was not relevant to any matter at issue. The only purpose for the State to seek admission of such testimony was to suggest to the jury that Meenk was a bad person because his own sister would not let him in her home. That is improper because it essentially seeks to arouse an emotional response rather than a rational decision among jurors.[10] Allowing an answer to the question was prejudicial for this reason. Was the error harmless in these circumstances? We hold that it was.

An evidentiary error which is not of constitutional magnitude requires reversal only if the error, within reasonable probability, materially affected the outcome of the trial.[11] Meenk argues that the question of whether he knew that M.V. was underage was close, and that the testimony materially prejudiced him because it showed that his sister did not trust him enough to allow him in her home. They jury could infer, he argues, that it should not trust his testimony. But Bruhahn did not testify that she did not trust or believe that her brother was dishonest, as he suggests. She gave no explanation for why she did not want him at her home the one time that the court allowed her to answer the irrelevant question of whether he was welcome there. More importantly, and contrary to Meenk’s view of the record, the central question of his asserted defense was not close. The jury had the opportunity to hear from each of the witnesses at length to determine their credibility. M.V., her sister, and Meenk all testified. Moreover, Meenk was able to cross-examine each of the witnesses to challenge their credibility. M.V. and her sister testified repeatedly that Meenk knew M.V.’s age. M.V.’s sister testified that she was certain that she told Meenk M.V.’s age during each of two phone calls. M.V. testified that when he met her he asked her if she was sure she was only 15, and she offered to show him her high school identification card to prove it. M.V. testified that she told her sister and Meenk about a school trip her class had taken to the park they were visiting. Her sister also testified about that conversation. M.V. also testified that Meenk told her not to tell anyone about the intercourse because he could get `five to ten years in jail for it.’ Also, pursuant to the trial court’s order, the State did not comment during closing argument on Bruhahn’s testimony regarding whether Meenk was welcome in her home. In the context of the trial and considering all of the testimony at trial, the single statement by Meenk’s sister that he was not welcome in her home did not materially affect the outcome of the trial.

The error was harmless.

COMPARABLE OFFENSE
Meenk argues that the trial court erred in ruling that his 1991 California conviction was comparable to third degree assault in Washington.

We disagree. Where a defendant’s criminal history includes out-of-state convictions, the Sentencing Reform Act of 1981 requires that these convictions be classified “according to the comparable offense definitions and sentences provided by Washington law.”[12] The sentencing court must compare the elements of the out-of-state offense with the elements of potentially comparable Washington crimes.[13] We review the sentencing court’s calculation of an offender score de novo.[14] In 1991, Meenk was convicted in California of infliction of corporal injury on a spouse or cohabitant. California Penal Code sec. 273.5(a) states:

Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition,[15]

`Traumatic condition’ is defined as `a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by physical force.’[16]

The trial court ruled that the elements of this offense were comparable to third degree assault, a felony, rather than fourth degree assault, a misdemeanor. This ruling was correct.

A person commits the crime of third degree assault in Washington where he or she, under circumstances not amounting to assault in the first or second degree, ‘[w]ith criminal negligence, causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm’[17] or ‘[w]ith criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering.’[18] “Bodily harm” means physical pain or injury, illness, or an impairment of physical condition.[19] The trial court ruled that the California conviction was comparable to a violation of the former of these two alternatives, RCW 9A.36.031(1)(d), not RCW 9A.36.031(1)(f).

Meenk argues that the California statute encompasses broader conduct and less serious injuries. First, he argues that the phrase `causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm’ in RCW 9A.36.031(1)(d) requires use of something other than a body part. Meenk argues that construing (d) to allow injury caused by a body part would render superfluous (f)’s phrase `causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering’ because a body part is capable of causing that kind of suffering. Thus, he argues, there would be no need for the two alternative means of committing third degree assault. This argument is not convincing. Subsection (d) requires only bodily harm, without qualification, and a thing capable of inflicting that bodily harm. Subsection (f) does not define how the harm must be inflicted, but only that the harm must be accompanied by substantial pain. Construing (d) to allow a body part to be a thing does not render (f) superfluous. Moreover, we do not accept the proposition that a body part may not be `a thing likely to produce bodily harm,’ as the third degree assault statute states.[20] It defies common sense to suggest that a body part, when used in the right way, cannot produce bodily harm to another. That is the essence of the assault statute when read in context. Accordingly, we need not address either the rule of lenity or the rule of ejusdem generis on which Meenk relies.

The essence of Meenk’s argument is that the California statue is more like Washington’s fourth degree assault statute, RCW 9A.36.041. The simple answer to this is that RCW 9A.36.041 does not require any showing of injury to the victim. And the California statute does require proof of at least a minor injury. Thus, fourth degree assault in Washington is not a comparable offense to the California crime. The trial court correctly concluded that the California statute was comparable to third degree assault, under RCW 9A.36.031(1)(d), rather than fourth degree assault. Meenk also cites a series of cases in which the defendant assaulted a victim using only body parts and was charged with only fourth degree assault, and cases in which the victim was injured by objects other than body parts and the defendant was charged with third degree assault. But none of these cases discusses the difference between third and fourth degree assault.[21] Thus, these cases are not helpful.

We affirm the judgment and sentence.

BAKER and KENNEDY, JJ. concur