Opinion
No. 60971-8-I.
November 24, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-8-01833-8, LeRoy McCullough, J., entered November 9, 2007.
Affirmed by unpublished per curiam opinion.
Appellant Roman Allah was convicted of third degree assault for assaulting a police officer. Allah contends the trial court erred by admitting a video recording made shortly after his arrest that showed him as angry and cursing the officers. Because the video recording was relevant to show Allah's requisite intent to commit the assault upon an officer, the trial court did not err in admitting it.
According to the facts found by the trial court after a bench trial, Officers Eric Faust and Wade Jones saw Allah standing in front of his house. Officer Jones, who knew Allah, checked for outstanding warrants and found that Allah had a valid arrest warrant for a failure to appear. When the officers approached Allah to serve the warrant, he ran into the house. The officers followed Allah and located him in an upstairs closet. Allah complied with their request to come out but then, while standing between the two officers, he pushed Officer Faust with an open hand. This caused Officer Faust to step back toward the stairs and almost lose his balance. The officers struggled with Allah, attempting to take him into custody. After arresting him they escorted him down the stairs and outside to the patrol car. As shown by an exhibit in the appellate record, a video camera mounted in the patrol car captured Allah's angry demeanor and the vulgar epithets he hurled at Officer Jones.
Allah was charged with the crime of assault in the third degree for assaulting Officer Faust. At trial in juvenile court, the State successfully sought to admit the video recording from the patrol car. The court found Allah guilty as charged.
Allah contends the video recording was inadmissible because it was not relevant as to any element of the charged crime. An appellate court reviews the trial court's admission of evidence for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995). Evidence is relevant if it is of consequence to the outcome of the action and makes the existence of the identified fact more or less probable. State v. Saltarelli, 98 Wn.2d 358, 362-63, 655 P.2d 697 (1982).
The statute under which Allah was convicted provides that a person is guilty of assault in the third degree if he assaults "a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time of the assault." RCW 9A.36.031(1)(g). The crime of assault in the third degree requires the State to prove the implied elements of intent and knowledge. State v. Tunney, 77 Wn. App. 929, 933, 895 P.2d 13 (1995).
The trial court found that the patrol car video captured "Allah's demeanor and explicit statements" toward police. A defendant's demeanor evidence can be irrelevant and is often inadmissible. See, e.g., State v. Perrett, 86 Wn. App. 312, 936 P.2d 426 (1997). In Perrett, the defendant was arrested for second degree assault with a deadly weapon after he pointed a gun at a tenant. When police asked the defendant on arrest to hand over the gun, the defendant refused because "the last time the sheriffs took his guns, he didn't get them back." Perrett, 86 Wn. App. at 319. The trial judge admitted the defendant's statement about the gun as relevant to showing the defendant's uncooperative attitude on arrest. This court reversed the conviction, holding that the trial court abused its discretion by admitting the statement because the defendant's demeanor during the arrest was not relevant to any element of the charged crime or to his self-defense justification. Perrett, 86 Wn. App. at 320.
Unlike in Perrett, the victim of Allah's assault was a police officer who was attempting to arrest him. Allah's demeanor was relevant to show that he knew it was a police officer he was assaulting, and that he intended to assault the officer. Other witnesses suggested that the contact between Allah and the officer was accidental. The evidence, showing Allah's anger at the officer tended to rebut this suggestion. The trial court did not abuse its discretion by admitting the video recording.
Allah also contends the video recording is inadmissible under ER 403 because any relevance was outweighed by the danger of unfair prejudice. However, the balancing test under ER 403 is designed primarily for jury trials. Exclusion of evidence on the basis of unfair prejudice has no logical application in a bench trial. See In re Harbert, 85 Wn.2d 719, 729, 538 P.2d 1212 (1975). A judge acting as the finder of fact is presumed able to concentrate on the relevance of evidence without being unfairly swayed by its emotional impact.
In addition, any error was harmless. Error is harmless if there is a reasonable probability that the outcome of the trial would not have been materially different had the error not occurred. State v. Robtoy, 98 Wn.2d 30, 44, 653 P.2d 284 (1982). The trial court found, based on the officers' testimony, that Allah's contact with Officer Faust "was the result of more than a reactive or accidental movement," and that Allah's conduct was "assaultive in nature." Allah does not challenge the trial court's finding that the testimony of the officers was credible. Even without consideration of the video recording, the trial court relying on the testimony of the officers would have found that the elements of the charge were satisfied.
Affirmed.