No. 24442-3-III.The Court of Appeals of Washington, Division Three.
November 21, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-1-00516-6, Harold D. Clarke III, J., entered August 19, 2005.
Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, A.C.J., and Kato, J.
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, Spokane, WA.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, Spokane, WA.
Andrew J. Metts III, Spokane County Pros Offc, Spokane, WA.
BROWN, J.
John Pesonen appeals his convictions for second degree assault-domestic violence and unlawful imprisonment-domestic violence. He contends the trial court erred in admitting evidence of his prior fourth degree assault-domestic conviction, and in providing the jury with an inadequate limiting instruction. Because the trial court did not abuse its discretion in admitting the evidence, and Mr. Pesonen invited any error in the form of a limiting instruction, we affirm.
FACTS
Police detained Mr. Pesonen in connection with reports of a violent incident between him and Susan Kreiman. Ms. Kreiman told police Mr. Pesonen grabbed her and forced her into a car.
The State charged John Pesonen with second degree assault and unlawful imprisonment. The State called Ms. Kreiman as a witness at trial. Ms. Kreiman recanted her earlier statements to police and minimized Mr. Pesonen’s abusive acts. The State sought to introduce evidence of Mr. Pesonen’s previous fourth degree assault-domestic violence conviction, perpetrated against Ms. Kreiman, to address Ms. Kreiman’s credibility. The court admitted the evidence and provided a limiting instruction to the jury: “Before this particular evidence is allowed, the Court advises you that you may consider the evidence only for the purpose of determining the credibility of the witness. You must not consider the evidence for any other purpose.” Report of Proceedings at 124-25. Mr. Pesonen agreed with the wording of the instruction.
The jury convicted Mr. Pesonen, and Mr. Pesonen appeals.
ANALYSIS A. ER 404(b)
The issue is whether the trial court erred in admitting evidence of Mr. Pesonen’s prior fourth degree assault-domestic violence conviction, under ER 404(b), after Ms. Kreiman minimized the charged incident of abuse. Mr. Pesonen contends the evidence is inadmissible, even when limited to assess Ms. Kreiman’s credibility, since the State failed to present expert testimony to explain the differences in Ms. Kreiman’s statements (at the time of the incident and at trial).
We review a trial court’s decision to admit evidence for an abuse of discretion. State v. Powell, 126 Wn.2d 244, 258, 893
P.2d 615 (1995). An evidentiary ruling will be disturbed solely when the trial court’s decision is manifestly unreasonable, or based on untenable grounds or reasons. Id.
A defendant’s prior bad acts are not admissible at trial to show he is likely to have committed the crime charged. ER 404(b); State v. Cook, 131 Wn. App. 845, 849, 129 P.3d 834 (2006). However, the evidence may be admitted for other legitimate purposes. Cook, 131 Wn. App. at 849. This includes admitting prior incidents of domestic abuse, perpetrated against the same victim, to assess the victim’s credibility when the victim reports abuse and then recants the statements or minimizes the abuse at trial. Id. at 851. The evidence is admissible to “illuminate the victim’s state of mind.” Id. The State is not required to admit expert testimony, that the victim suffers from battered partner syndrome, to explain the discrepancies in the victim’s statements. Id. at 852.
While expert testimony may assist a jury in understanding the intricacies of relationships marked by violence, we do not believe such testimony is necessary in order to assess the state of mind of an individual whose acts are inconsistent with a report of abuse. The jury may draw from its own common knowledge and the evidence submitted at trial to determine if the victim’s inconsistent behavior is the result of a fear of retaliation, misguided affection, internalized shame or blame, or a continuing dependence on the defendant.
Id. at 852-53.
The State sought to admit evidence of Mr. Pesonen’s prior fourth degree assault-domestic violence conviction, under ER 404(b), after Ms. Kreiman minimized the charged incident of abuse. The court admitted the evidence. The State did not accompany the evidence with expert testimony to explain the discrepancies in Ms. Kreiman’s statements.
The trial court’s decision to admit the evidence was not an abuse of discretion. Powell, 126 Wn.2d at 258. Ms. Kreiman’s credibility was at issue, and the State was not required to submit expert testimony to explain the discrepancies in Ms. Kreiman’s statements. Cook, 131 Wn. App. at 850-52.
B. Limiting Instruction
The issue is whether the trial court erred in providing the jury with an inadequate limiting instruction, regarding Mr. Pesonen’s prior fourth degree assault-domestic violence conviction. Mr. Pesonen contends the instruction was inadequate since it did not expressly restrict the jury from considering the evidence of prior misconduct for propensity purposes. We review alleged instructional errors de novo. State v. Woods, 143 Wn.2d 561, 590, 23 P.3d 1046 (2001).
A court may admit a defendant’s prior acts of domestic violence to assess a victim’s credibility if it provides the jury with an adequate limiting instruction. Cook, 131 Wn. App. at 851-53. The instruction must restrict the jury from using the evidence for propensity purposes to prove the defendant committed the crime charged. Id. at 853-54. Simply instructing the jury that it may consider the evidence for the limited purpose of assessing the witness’ credibility, and that it “must not consider the evidence for any other purpose” is insufficient. Id. at 849. In Cook, the court requested the following limiting instruction: “Evidence has been introduced in this case on the subject of prior incidents of domestic violence between Ms. O’Brien and Mr. Cook for the limited purpose of assessing the credibility of (witness) Cindy O’Brien. You must not consider this evidence for any other purpose.” Id.
While the instruction given here is arguably improper in light of Cook, the record shows Mr. Pesonen’s counsel requested a curative instruction and agreed to its form. We are precluded from reviewing this instructional error claim under the doctrine of invited error because Mr. Pesonen agreed to the court’s wording. State v. Winings, 126 Wn. App. 75, 89, 107 P.3d 141
(2005). Thus, Mr. Pesonen’s conduct constituted a waiver of any future objections to the instruction. Id.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, A.C.J. and KATO, J., concur.