Opinion
No. 27820-4-III.
Filed: February 10, 2011.
A jury convicted Melquadies Manuel Benavidez of first and fourth degree assault, first degree burglary, and witness intimidation. He appeals, contending the trial court abused its discretion in admitting evidence of a prior assault and in refusing to let one of his defense attorneys withdraw in order to testify on his behalf. Mr. Benavidez also contends cumulative error deprived him of a fair trial and that the court incorrectly calculated his offender score. We agree that there was error in the manner in which evidence of the prior conviction was admitted and that in light of unforeseen testimony it was error not to allow defense counsel to withdraw and testify. We find no error in calculation of the offender score.
We reverse the conviction for witness intimidation. However, in light of overwhelming evidence establishing the two assaults and burglary, we find that error with respect to those counts was harmless beyond a reasonable doubt and affirm those convictions.
OVERVIEW OF FACTS AND PROCEDURAL HISTORY
Assault and Burglary Charges
In the weeks leading up to October 21, 2006, Manuel Benavidez had a series of contentious dealings with Junior Medel, whom he suspected of being involved with Mr. Benavidez's girl friend and the mother of three of his children, Roxanne Martinez. On October 21, Mr. Benavidez and Mr. Medel had two fights, the first of which began when Mr. Benavidez, traveling in a vehicle with Ms. Martinez and their children, drove past the home of Mr. Medel's mother, where they saw Mr. Medel in the yard with his brother Moises and his friend Tomas Quintanilla, who were there to help paint Mrs. Medel's home. Mr. Benavidez told Ms. Martinez to stop the car, admitting at trial that he intended to confront Mr. Medel. He approached and exchanged blows with Mr. Medel. Prosecution witnesses later testified that after Mr. Medel gained the upper hand Mr. Benavidez left, but threatened to return.
We refer to Junior Medel as Mr. Medel and therefore refer to his brother as Moises, or Moises Medel.
After dropping Ms. Martinez and the children at the home of Ms. Martinez's sister, Mr. Benavidez and Ms. Martinez's brother Paul drove back to the Medel home. On Mr. Benavidez's and Mr. Martinez's return to the Medel home, there was a second fight. Mr. Medel claimed that as he attempted to prevent Mr. Benavidez's entry into the fenced front yard, Mr. Benavidez forced his way in and attacked him with a screwdriver. The two fought, and according to Mr. Medel, as soon as he again got the upper hand Mr. Benavidez claimed to be done. As Mr. Medel turned his back to walk away, however, Mr. Benavidez jumped him, threw him to the ground, and drove his thumb into Mr. Medel's eye, gouging out his eyeball. Mr. Benavidez then fled from the scene.
The eye injury was severe and Mr. Medel was taken first to a hospital in Moses Lake, from which he was transferred by ambulance to a hospital in Wenatchee, and then airlifted to Harborview Medical Center in Seattle. Despite several surgeries by ophthalmology specialists, he was permanently blinded in the injured eye. Mr. Benavidez was charged with fourth degree assault for the first fight and with first degree burglary and first degree assault for the second.
Witness Intimidation Charge
Four months after the altercations, in February 2007, Mr. Benavidez and Mr. Quintanilla were inadvertently placed in the same jail cell. Mr. Quintanilla contends that Mr. Benavidez said he was going to "mess me up right" if he testified against Benavidez, and that Mr. Benavidez forced him to write a statement about the October 21 fight. Report of Proceedings (RP) at 493. Mr. Quintanilla's written statement asserts that he saw Mr. Medel and Mr. Benavidez get into a mutual "one on one" fight and that he had made prior statements because Mr. Medel's mother asked him to. Ex. 42.
Upon learning of these allegations, the State amended the information in January 2008 to include a charge of witness intimidation.
Pretrial Motions
The State sought a pretrial ruling on the admissibility of a 1997 first degree assault conviction of Mr. Benavidez, characterizing the conviction as having involved a factually similar circumstance of Mr. Benavidez's stabbing a man whom he learned was a romantic rival for his then girl friend, also the mother of one of his children. The State contended that the evidence was admissible to rebut the defendant's claim that the injury to Mr. Medel's eye was accidental or unintentional. Defense counsel countered that the prior conviction was irrelevant because Mr. Benavidez's defense was not that he blinded Mr. Medel accidentally but that he did not believe that he caused damage to the eye at all. The trial judge did not rule on the issue pretrial but said he might admit the evidence depending on the nature of the defense.
At the outset of trial, Mr. Benavidez moved the court to dismiss the witness intimidation charge on grounds defense counsel had not been provided with a written statement or summary of the information supporting the charge despite multiple requests and therefore had no ability to defend. The prosecutor told the trial judge that he had not prepared a written summary or memorandum of the interview of Mr. Quintanilla that was the basis for the witness intimidation charge because he considered it work product and out of concern that he would be called as a witness. He represented that he had verbally shared with both defense attorneys the information related by Mr. Quintanilla. The trial judge denied the defense motion to dismiss the charge. Trial
In opening statement, defense counsel told the jury that while Mr. Benavidez had come looking for the first fight, he thought the better of it and returned to the Martinez home with no intention of getting into a second altercation. He told the jury that Mr. Benavidez only returned to the Medel home to retrieve keys he had dropped earlier. He stated that it was Mr. Benavidez who was jumped by Mr. Medel when he returned to the Medel home and that he was only defending himself against Mr. Medel, who was attacking him with the screwdriver when, as the two were rolling and wrestling in the front yard, Mr. Medel suddenly began screaming, "my eye, my eye." Counsel told the jury that Mr. Benavidez denied putting his finger in Mr. Medel's eye and claimed not to know how Mr. Medel had suffered the eye injury.
The State's evidence included the testimony of Mr. Medel, who testified that Mr. Benavidez was the aggressor but that he was eventually able to subdue Mr. Benavidez, who agreed to stop fighting. As Mr. Medel began walking away, Mr. Benavidez grabbed him from behind, slammed him to the ground, pinned him on his back, and according to Mr. Medel "shoved his thumb in my eyeball and started moving it around, gouging my eye out." RP at 377.
Other witnesses to the fight called by the State were Moises Medel, who testified that he saw Mr. Benavidez kick his brother to the ground and saw Mr. Benavidez's hands on his brother's head, and Mr. Quintanilla, who testified that Mr. Benavidez came at Mr. Medel "swinging" and that after a struggle between the two men, Mr. Benavidez managed to take Mr. Medel to the ground, put a knee on his chest and his right thumb into Mr. Medel's eye.
Mr. Quintanilla was cross-examined about a series of inconsistent statements. Defense counsel established in cross-examination that within a few hours after the attack on October 21, Mr. Quintanilla spoke to an investigating officer and provided a written and sworn statement that he had been in the backyard placing plastic on the rear windows and did not see the fight; he heard Mr. Medel yell "my eye, my eye" and went around to the front of the house to see what was happening. Ex. 54. A week later, he, Mr. Medel, and Moises Medel traveled to the Moses Lake police department together and Mr. Quintanilla provided a written statement to a different detective, stating that he had not seen the first fight but that he had seen the second and that he saw Mr. Benavidez throw Mr. Medel to the ground and gouge his eye. Ex. 55. Defense counsel established in cross-examination that Mr. Quintanilla's second statement was consistent with statements provided by Mr. Medel and Moises Medel at the same time. Finally, Mr. Quintanilla later met with a defense investigator for an interview that was transcribed and cross-examination established that when interviewed, Mr. Quintanilla told the investigator that Mr. Benavidez and Mr. Medel had tripped over cinder blocks in the garden and stated "I guess both of `em had fingers in each other's eyes, but I didn't see none of `em with the fingers in each other's eyes. You know, I couldn't, the way they were, you couldn't really see." RP at 513. On cross-examination, Mr. Quintanilla admitted that he made the statement but denied the truth of it.
In the statement, Mr. Quintanilla wrote, "I never saw what happened to [Mr. Medel] and no one told me what happened." RP at 501 (Ex. 54).
Mr. Quintanilla's testimony at trial established that confusion existed about the two-page statement written in jail that was the basis for the witness intimidation charge. The statement had been witnessed by Jeff Goldstein, one of the defense attorneys, and according to Mr. Goldstein had been written out by Mr. Benavidez entirely in his presence. The prosecutor appeared to have the same understanding; he told the jury in opening statement that the February 2007 statement was the result of Mr. Benavidez's threat and intimidation, but that Mr. Quintanilla had prepared it in the presence of Mr. Goldstein and a corrections officer, Sergeant Phil Coats. RP at 56-57, 70.
When Mr. Quintanilla testified, however, he said that the second page of his two-page statement — which contained its substance — had not been prepared in Mr. Goldstein's presence, it had been prepared in the jail cell, with only himself and Mr. Benavidez present. He testified that after preparing the page, Mr. Benavidez had reviewed it and told him it was good.
Following this testimony, defense counsel notified the judge outside the presence of the jury that they were surprised by Mr. Quintanilla's testimony and that Mr. Goldstein needed to withdraw because he was needed as a rebuttal witness on the witness intimidation charge. The following exchange occurred:
THE COURT: What are you going to say? You weren't there.
MR. GOLDSTEIN: Well, I was there. That's the point. I was the one that took the statement from Mr. Quintanilla. I was the one that was present when he was writing the statement. That's why I'm a witness in the case. I didn't expect that Mr. Quintanilla was going to — was going to testify the way that he was. I didn't expect that he was going to say he was up in the cell block with Mr. Benavidez standing over — standing over him telling him what to write. And that's not what happened.
RP at 536.
In his offer of proof, Mr. Goldstein further explained:
[Mr. Quintanilla] had come downstairs in the jail and there's a meeting room down there, and so I met with him in the meeting room and I told Mr. Quintanilla that this is a statement, it's under penalty of perjury, he asked me what he should write. I said, I can't tell you what to write, I can only tell you that it's under penalty of perjury and that it should be the truth. . . .
So Mr. Quintanilla started writing something on the first page, and on the first page . . . he wrote about three lines on the first page and then he said he wanted to start over. And so I got him another piece of paper. And then he wrote out a statement on the second page. And so on the first page I wrote that the rest of the statement is attached.
And then at that point Mr. Quintanilla signed it, I signed it.
RP at 539.
The court denied Mr. Goldstein's request, stating it "attacks the credibility of the witness by an attorney as a witness, and I'm not going to allow that to happen." RP at 537.
The State examined at length two of Mr. Medel's treating physicians, Dr. Raghu C. Mudumbai and Dr. Elaine Lucille Chuang, both of whom testified to the nature of Mr. Medel's injury, the physiology of the eye and the skull, and the type and amount of the force that would have been required to produce the injury.
Dr. Mudumbai, an ophthalmologist, evaluated Mr. Medel's eye in the emergency room. He testified that Mr. Medel had severe ocular trauma to his left eye, including retinal detachment. He explained that the eyeball had ruptured and its contents had extruded. He opined that "there did not seem to be any evidence that an actual external object such as a sharp object had caused an injury to the eye, it was the . . . force of the trauma to the eye that caused the eye to open up." RP at 244. He also testified that "considerable force" was required to produce the eye injury and that the injury was consistent with Mr. Medel's version of events. RP at 249, 250-51.
Dr. Chuang, another ophthalmologist, performed two surgeries in an attempt to save Mr. Medel's eye. Dr. Chuang opined that the blunt force injury was the direct cause of the blindness. She also explained that considerable force was required to produce the injury and that the mere slip of a finger or falling down could not have caused the injury. She stated, "[I]t's highly implausible that [the injury] could have accidentally occurred from falling down on top of someone." RP at 336.
At the close of the State's case, the State renewed its request to offer Mr. Benavidez's 1997 assault conviction. The court indicated at that time that it was inclined to admit the evidence "because it's clear to me from opening statements that [the] defense is one of accident." RP at 594. Defense counsel continued to argue that it was not defending on the basis of accident because it denied that Mr. Benavidez gouged Mr. Medel's eye accidentally. After hearing argument from counsel, the trial court stated:
[I]t is this court's view that the sole issue is whether this, indeed, was an accident. Now, how you choose to define it, I'll use the term accident, because the defense's position is that it didn't happen because he put his thumb in his eye purposely. The defense is that it happened in some other way. I'll call that an accident.
. . . I think that probative value of the evidence outweighs the prejudicial effect.
RP at 597-98.
Defense counsel also challenged the manner in which evidence of the prior conviction would be offered, contending that "it appears . . . they're only asking for convictions, which prove nothing other than conviction." RP at 594. Initially, however, the State represented that it would offer a certified copy of the judgment, sentence, findings, and conclusions entered in connection with the 1997 conviction, which it represented to the court "explains in detail everything." RP at 599. After the trial court ruled that it would admit the certified exhibit as a public record, the State, without explanation, asked to substitute only the conviction. The State asked the defense to stipulate to admitting the conviction without the findings, but the defense refused. Without further argument or objection, the State offered the certified conviction only and the court informed the jury that the "document" would be admitted. The State then rested.
Mr. Benavidez testified consistent with his counsel's opening statement; he denied putting his finger in Mr. Medel's eye and claimed not to know how Mr. Medel had suffered the eye injury. He also denied threatening Mr. Quintanilla or forcing him to write a statement. Thereafter, during cross-examination of Mr. Benavidez in the defense case, the prosecutor approached Mr. Benavidez with the conviction and questioned him as follows:
Q: . . . Do you see this judgment and sentence, conviction for assault?
A: Yes.
Q: Okay. Is this your conviction, your judgment and sentence?
A: Yes.
RP at 750. The defendant answered "yes" before defense counsel could object and its belated objection was overruled. The questioning proceeded:
Q: Okay. So you knew just how serious this matter could be, did you not?
A: Yes.
Id.
The jury was never informed of the degree of the assault, the circumstances of the assault, or when it occurred. Ultimately the court withdrew the judgment and sentence without objection from the prosecutor, who had volunteered a concern that it contained Mr. Benavidez's criminal history. The court stated to the prosecutor "I'm just going to withdraw it. I think you're in trouble anyway, because it's a[n ER] 404(b) problem and it wasn't used properly." RP at 792.
The jury found Mr. Benavidez guilty of all charges. The court imposed a standard range sentence.
ANALYSIS
Admission of Testimony Under ER 404(b)
Mr. Benavidez's first challenge is to the trial court's admitting evidence of his 1997 conviction for assault. We will not disturb the trial court's evidentiary decisions absent an abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). A trial court abuses its discretion when its evidentiary ruling is based on untenable grounds or reasons. Id.
ER 404(b) states in part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Admissibility under ER 404(b) requires that the court find the evidence relevant, identify the purpose for which the evidence will be admitted, and conduct an ER 403 balancing test weighing the probative value of the evidence against any undue prejudicial effect the evidence may have upon the fact finder. State v. Saltarelli, 98 Wn.2d 358, 361-63, 655 P.2d 697 (1982). Evidence of prior bad acts is not admissible to show propensity to commit a crime but may be admitted for other purposes such as to prove motive, opportunity, intent, or lack of mistake. ER 404(b); State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
Initially, the court admitted the entire judgment, including findings, to rebut Mr. Benavidez's assertion that Mr. Medel's injury was accidental. Its initial ruling was not an abuse of discretion. Mr. Benavidez's defense was implicitly that the injury was accidental — even if counsel scrupulously avoided using the word "accident" and Mr. Benavidez testified unequivocally that he did not strike even an accidental blow to Mr. Medel's eye. Evidence that Mr. Benavidez had previously traveled to the home of a romantic rival and committed an aggravated assault tended to make more probable the fact that Mr. Medel's injuries resulted from an intentional assault than an unexplained accident. And where the ability of witnesses to see the mechanism of Mr. Medel's injury was limited, the court could reasonably have found that the probative value of the evidence outweighed its prejudicial effect. See accord State v. Roth, 75 Wn. App. 808, 819, 881 P.2d 268 (1994) (evidence of death of defendant's former wife in a fatal fall was relevant and probative since it tended to make murder of a later wife more probable than an otherwise-questionable claim that she accidentally drowned), review denied, 126 Wn.2d 1016 (1995); State v. Gogolin, 45 Wn. App. 640, 727 P.2d 683 (1986) (prior assault by defendant against victim was relevant and probative since it tended to make assault more probable than defendant's claim that the victim had accidentally fallen).
The error was in admitting the conviction alone. Without evidence demonstrating that the prior assault involved a romantic rival and aggravated injuries, admission of the conviction did not fall within one of the ER 404(b) exceptions. It proved nothing other than to improperly suggest Mr. Benavidez's propensity to commit a similar crime.
We next must determine whether the error was harmless. The State argues that the stand-alone conviction was harmless because it was less compelling evidence against Mr. Benavidez than would have been a demonstration of the similarity of the prior crime. We agree that the conviction would have been more powerful evidence if presented as the prosecutor originally planned. But we will not, for good and obvious reasons, assess "harmlessness" on the basis that more damaging proof could have been presented. The usual test of harmlessness applies.
Evidentiary rulings generally are not of constitutional magnitude and therefore require reversal only if the defendant is prejudiced. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997). Prejudice is not presumed. Id. The error is prejudicial only if "within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred." State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981). The question is whether the untainted evidence is sufficient to support, overwhelmingly, the jury's finding of guilt. State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986); see State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993).
Counting toward prejudice is the fact that the jury was not informed when the prior assault occurred and could have had the impression that it was recent. While the State downplays any harm because evidence of other prior convictions of Mr. Benavidez had been presented, those other convictions did not involve violent conduct. See RP at 763-66 (e.g., obstructing law enforcement by giving a false name, bench warrant). Our cases recognize that the admission of a prior conviction similar to the current offense is highly prejudicial because the jury may consider it propensity evidence. See State v. Scott, 151 Wn. App. 520, 529, 213 P.3d 71 (2009).
Nonetheless the untainted evidence of an intentional assault is sufficiently overwhelming to compel the conclusion that admission of the evidence was harmless. In addition to uncontested evidence of a series of run-ins between Mr. Benavidez and Mr. Medel leading up to the final fight and Mr. Medel's testimony, the State presented the testimony of two treating experts — as to which the defense presented no countervailing evidence — supporting Mr. Medel's version of events with an explanation of the physiology of the eye that a lay jury could understand and that foreclosed almost any other mechanism of injury. While Mr. Benavidez testified to a very different version of events even he could not offer a reasonable alternative explanation for the type of injury sustained by Mr. Medel.
Denial of Defense Counsel's Motion to Withdraw and Testify
Mr. Benavidez next contends that the trial court's denial of Mr. Goldstein's motion to withdraw violated his Sixth and Fourteenth Amendment rights to a fair trial and impartial jury. Specifically, he contends that the court's ruling violated his right to offer the testimony of his own witness and present a defense. We review a trial court's ruling on an attorney's motion to withdraw for abuse of discretion. See State v. Hegge, 53 Wn. App. 345, 350, 766 P.2d 1127 (1989).
While no Washington case addresses whether a trial court abuses its discretion in denying a motion to withdraw under the circumstances present here, Mr. Benavidez identifies other courts that have held that it is an abuse of discretion to refuse to allow defense counsel to withdraw in order to provide critical testimony about relevant matters. United States v. Vereen, 429 F.2d 713 (D.C. Cir. 1970); People v. Goldstein, 130 Cal. App. 3d 1024, 182 Cal. Rptr. 207 (1982).
In Vereen, for example, a witness told defense counsel during a pretrial interview that the defendant had been coerced to participate in a robbery but come trial, the witness recanted. Vereen, 429 F.2d at 714. At the close of the State's case, defense counsel asked to withdraw in order to testify about the interview. The trial court denied the request, stating "`it is inappropriate for counsel to insert himself as a witness.'" Id. at 714. The appellate court reversed and explained:
No others were present during the interview between defense counsel and Mason [the witness], and only appellant was available to tell his version of the events at the scene of the crime. Furthermore, counsel's testimony was designed, not directly to dispute Mason's characterization of the crime, but rather fully to inform the jury of a conflicting story Mason had told shortly before the trial. The significance of that testimony, in view of Mason's directly conflicting answers described above, is obvious. In these circumstances, it was essential that counsel request permission to testify, and it was error to refuse his request.
Id. at 715.
In Goldstein, shortly before trial was to start, defense counsel was informed that a material witness, expected to testify for the defense, had recanted his testimony and was going to testify for the State. 130 Cal. App. at 1029. The witness then testified damagingly on behalf of the State. Id. The trial court refused to allow defense counsel to withdraw to testify about the witness's prior inconsistent statements. Id. at 1029-30. The reviewing court held this was constitutional error, noting:
[A]ccording to defense counsel's offer, he would testify to prior inconsistent statements of a material witness against Goldstein. It was relevant testimony tending in reason to disprove the disputed fact of his client's guilt. . . . The right to produce legally admissible relevant evidence in defense of a criminal charge is one of the " basic ingredients of due process of law." It is "fundamental to the fair administration of American justice" and " due process of law" that "a criminal charge may be answered" by "the calling and interrogation of favorable witnesses."
Id. at 1030-31 (citation omitted). See also State v. Foy, 206 Wis.2d 629, 557 N.W.2d 494 (1996) (trial court erred in refusing defense counsel to withdraw to testify on a critical and relevant matter for defendant); State v. Blake, 157 Conn. 99, 103, 249 A.2d 232 (1968) (error to refuse to allow defense counsel to testify about a witness's prior inconsistent statements — the court noted the proper course of action would be "for the attorney to withdraw from the case as soon as it became reasonably foreseeable that his testimony on a material matter might be likely to be required").
Nonetheless, the State argues that Mr. Benavidez's defense attorney knew in advance that Mr. Goldstein was a potential witness to the witness intimidation charge and the request to withdraw midtrial was therefore untimely. But the State relies on a pretrial conversation in which the prosecuting attorney informed defense counsel that "`Mr. Goldstein was there. He was there witnessing this statement being made.'" Resp't's Br. at 16 (quoting RP at 38-39). Mr. Goldstein did know that he had served as a witness to the preparation of the statement. But what he did not know — nor did the prosecution, it appears — was that Mr. Quintanilla would testify to something different.
The State also argues that if the trial court had allowed Mr. Goldstein to testify it would have "given defense counsel the benefit of hearing conflicting testimony, and basically allowed an attorney to vouch for his client's version of the facts by trying to impeach Quintanilla's testimony." Id. at 17.
We agree with Mr. Benavidez that Mr. Goldstein's testimony was critical to rebut Mr. Quintanilla's testimony on the witness intimidation charge. If we accept his offer of proof, he was the only person in the immediate vicinity when Mr. Quintanilla wrote the statement in front of him, with warnings and under circumstances that were important to countering the witness intimidation charge. Mr. Benavidez's legitimate need for the evidence outweighs the State's concern that Mr. Goldstein had an opportunity to hear conflicting evidence and vouch for his client's version of events.
Given Mr. Goldstein's surprise at Mr. Quintanilla's testimony and the fact that co-counsel was available to continue the trial, the trial judge should have allowed Mr. Goldstein to withdraw and testify. Refusal to do so violated Mr. Benavidez's constitutional right to offer the testimony of his own witness and the right to present a defense. See State v. Roberts, 80 Wn. App. 342, 350-51, 908 P.2d 892 (1996) ("Washington defines the right to present witnesses as a right to present material and relevant testimony"); State v. Austin, 59 Wn. App. 186, 194, 796 P.2d 746 (1990) (the exclusion of evidence relevant to the accused's defense violates due process, citing Taylor v. Illinois, 484 U.S. 400, 108 S. Ct. 646, 651-53, 98 L. Ed. 2d 798 (1988) and noting Sixth Amendment right to present a defense).
In assigning error to the trial court's refusal to allow Mr. Goldstein to withdraw, Mr. Benavidez argues that it not only prevented him from defending against the witness intimidation charge but compromised trial of the remaining counts as well, by violating his right to an unbiased jury. State v. Davis, 141 Wn.2d 798, 824-25, 10 P.3d 977 (2000). Mr. Benavidez points out that Mr. Quintanilla's "unrefuted testimony strongly supported the inference that Mr. Goldstein was complicit in the manufacture of a document obtained through witness intimidation and fraudulently purporting to be witnessed by himself." Appellant's Br. at 16. As Mr. Benavidez argues: "The spectacle of an attorney who was implicated in one of the charged crimes blatantly sitting at the side of the accused through trial would necessarily have prejudiced the jury against the defense." Id.
This argument goes beyond the objection and remedy suggested by defense counsel at trial. At trial, counsel and the court agreed that the need for Mr. Goldstein to testify implicated only the witness intimidation charge. The following exchange occurred:
THE COURT: I'm not going to allow [Mr. Goldstein] out. The only question is what I will do with that charge.
[PROSECUTOR]: Very well.
THE COURT: My inclination is to let it go to the jury. I don't want the jury to see me dismissing a charge. But I might dismiss it depending on what their verdict is.
[DEFENSE COUNSEL]: Your Honor, I think maybe what the — considering all of this, I think what we'll do at this time, then, is just move the court to sever that one count from this so that we can go to the jury with the burglary and the assault counts.
THE COURT: I'm going to let it all go to the jury.
[DEFENSE COUNSEL]: The court's denying our motion to sever the witness intimidation count?
THE COURT: Yes.
[DEFENSE COUNSEL]: Our proposal, by the way, your Honor, would be to sever it and then declare a mistrial as to that count only. Mr. Goldstein can withdraw. And then we would naturally call him as a witness in any retrial on that one charge.
THE COURT: Your motion is denied.
RP at 545-46. Like defense counsel at the time of trial, we are not persuaded that denial of Mr. Benavidez's motion to allow Mr. Goldstein to withdraw prejudiced his defense against the assault and burglary counts. The evidence came in a confusing fashion and without any suggestion by the State at any time, through questions or through later argument, that there had been any wrongdoing on Mr. Goldstein's part.
The trial court erred in refusing to allow Mr. Goldstein to testify but the only prejudice was in connection with the witness intimidation count.
III. Cumulative Error
The cumulative error doctrine applies to instances where there have been several trial errors that, standing alone, might not be sufficient to justify reversal but, when combined, may deny a defendant a fair trial. State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). The defendant bears the burden of proving an accumulation of errors of sufficient magnitude that retrial is necessary. State v. Price, 126 Wn. App. 617, 655, 109 P.3d 27, review denied, 155 Wn.2d 1018 (2005).
Application of the cumulative error doctrine does not affect our analysis. The failure to allow Mr. Goldstein to withdraw was an abuse of discretion and requires that we reverse Mr. Benavidez's conviction for witness intimidation. For reasons discussed above, the court's errors were harmless, individually and collectively, with respect to the assault and burglary counts.
IV. Offender Score
The final issue raised on appeal is Mr. Benavidez's assertion that the trial court erred in calculating his offender score because it included six class C juvenile felony convictions in calculating the score; convictions he contends should have been excluded under RCW 9.94A.525(2)(c) because they were "washed out" by a five-year crime-free period following a 1997 burglary conviction and a 2003 third degree assault. He argues that the errors increased his offender score by three points.
In response, the State points out that the wash out rule begins operating from the last date of release from confinement, not from the date the offense was committed, and that since Mr. Benavidez was sentenced to 72 months' confinement pursuant to his first degree assault conviction in January 1998, he did not spend five years outside confinement before committing another offense. Resp't's Br. at 19. The trial record indicates that Mr. Benavidez was sentenced to 72 months. Ex. 59 at 8; see also Sentencing RP (Jan. 6, 2009) at 9.
In reply, Mr. Benavidez argues only that the State did not present evidence establishing the date of confinement.
At sentencing, the State must prove a defendant's criminal history by a preponderance of the evidence. State v. Mendoza, 165 Wn.2d 913, 920, 205 P.3d 113 (2009). The best evidence of a prior conviction is a certified copy of the judgment and sentence. State v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002).
The State must meet its burden by providing reliable evidence establishing the accuracy of the offender score calculation. State v. Ford, 137 Wn.2d 472, 480-82, 973 P.2d 452 (1999). The prosecution is required to "introduce evidence of some kind to support the alleged criminal history." Id. at 480. The State's burden under the Sentencing Reform Act of 1981, chapter 9.94A RCW, "is not overly difficult to meet." Id. The evidence in the trial court was sufficient to establish the accuracy of the offender score calculation.
We reverse the conviction for witness intimidation and affirm the remaining convictions.
A majority of the panel has determined that 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.
KORSMO, A.C.J. and SWEENEY, J., Concur.