Opinion
47432-8-II
05-02-2017
STATE OF WASHINGTON, Respondent, v. LAWRENCE E. DIESE, Appellant.
UNPUBLISHED OPINION
Lee, J.
Lawrence E. Diese appeals his conviction for second degree rape-domestic violence. We hold that the trial court did not err, Diese received effective assistance of counsel, and there is no cumulative error. We also hold that Diese's arguments raised in a statement of additional grounds (SAG) fail. Accordingly, we affirm.
FACTS
A. The Incident
In 2008, Diese; his daughter, Kary Diese; his girlfriend, Juline Dual; Dual's daughter, N.B.; and Kary's friend, Tyler Lobes, lived together in Diese's home in Vancouver, Washington. Dual and N.B. lived with Diese from 2008 to 2009. During that time, Diese raped N.B. multiple times. Diese would pressure her to have sexual intercourse with him, and N.B. resisted at first, but was unsuccessful. The rapes occurred when N.B. was alone with Diese, and either after N.B. and Dual had an argument or N.B. got in trouble at school. N.B. did not tell anyone about the rapes at the time because she had always been afraid of Diese and was afraid the situation would get worse if she told. Also, Diese had thrown N.B. against a wall and given her a "fat lip" on one occasion. 3 Verbatim Report of Proceedings (VRP) at 224.
Pursuant to General Order 2011-1, we use initials for witnesses known to have been under the age of 18 at the time of any event in the case.
In May 2009, Dual and N.B. moved out of Diese's home after an argument between Diese and Dual. During that incident, Diese "grabbed [N.B.] by the scruff of the neck and threw her out the front door" and dragged Dual out of the home by her hair. 4 VRP at 347. Diese admitted to throwing N.B. and Dual out of his home in 2009.
In May 2013, Dual moved back in with Diese. N.B. was not happy that Dual had resumed her relationship with him and told Dual that Diese had raped her when they previously lived together. Dual did not believe N.B.
In January 2014, N.B. asked Dual if she could move in with Diese and Dual. Diese was against the idea, but he agreed after conditioning the move on N.B. staying short term, helping with chores, getting a job, going to counseling, and being in the house only when Dual was home.
After N.B. moved in, on February 23, Diese was upset that the house was dirty and that N.B. was not there to clean it. Diese later asked N.B. to go for a walk, during which Diese told her that she "had to do everything he said without argument." 3 VRP at 245. N.B., assuming that Diese was referring to housework, agreed.
When they returned home, Dual was gone, leaving Diese and N.B. home alone. N.B. sat on the couch and started an audio recording on her cell phone because she felt uncomfortable being home alone with Diese. Diese came up to N.B. and said that she "didn't live up to what he was deciding and what he wanted." 3 VRP at 252. Diese tightly grabbed N.B.'s hand and told her to get up. N.B. pulled back, but Diese started counting down. She was afraid of him because he had been violent before, so she got up. Diese led N.B. to the bathroom where he pulled down her pants and raped her while she cried. N.B. tried to push Diese away, but was unsuccessful. Afterwards, N.B. retrieved her phone and stopped recording. When Dual returned home, N.B. was crying, but she did not disclose the rape because Diese was still home.
On February 26, while Diese was at work, N.B. told Dual that she had proof Diese raped her and played the recording. The next day, N.B. played the recording for her counselor, who made her call the police. The police interviewed N.B. several times.
N.B. received a physical exam on February 27, where a 1mm hematoma on N.B.'s vagina was discovered. The hematoma was consistent with blunt force trauma; such injuries are not typical of non-assaultive sexual intercourse. The nurse stated that she would not expect to see that injury four days after the sexual contact N.B. described.
Also on February 27, Diese went to the Vancouver Police Department for questioning. There, Detective Anderson informed Diese that serious charges were brought against Diese so he had some questions. Diese then requested an attorney and was arrested. While Diese was being advised that he was being arrested for second degree rape and false imprisonment, he responded, "I didn't imprison anyone." 3 VRP at 186. On the way to jail, Diese asked, "Does [N.B.'s] mother know?" 3 VRP at 186. The State charged Diese with second degree rape-domestic violence.
The trial court did not admit this statement.
B. Pretrial Proceedings
1. Cell Phone Recording
Diese moved to suppress N.B.'s February 23 cell phone recording because he did not consent to being recorded. On the first part of the recording, N.B. and Diese are heard:
DIESE: (Inaudible). Drop them. Let's go. (Inaudible).
N.B.: I don't want to.
DIESE: (Inaudible).
N.B.: No, not that.
DIESE: (Inaudible).
N.B.: (Inaudible) and stuff.
DIESE: (Inaudible).
N.B.: No, not (inaudible).
DIESE: (Inaudible) without question.
N.B.: Okay. Well, I'll leave because I ain't doing that. You're my mom's boyfriend.
You should be doing that with Mom, not me.
DIESE: I can do whatever I want how I want.
N.B.: Not with me.
DIESE: So I got to tell your mom now (inaudible) and get you out of here?
N.B.: I guess, because I'm not (inaudible).
DIESE: We shall see. You know you have nowhere to go. You have no one to help you.
N.B.: (Inaudible).
DIESE: Say again? Stand up.
N.B.: No.
DIESE: Come on. Get up. Let's go. Your pants are already halfway off. Let's go.
Right now. Stand up. Come on. (Inaudible). Come on. (Inaudible). Come on. I'll hold your hand. Let's go. (Inaudible).
N.B.: (Inaudible).
DIESE: I'm going to count to three. One, two. Come on. (Inaudible).1 VRP at 35-36. On the second part of the recording, only N.B. crying and the sound of running water are heard.
The trial court acknowledged that the recording was created without Diese's permission, but found that the first part contained a conversation in which Diese was extorting sexual activity from N.B. with threats of being homeless. The trial court reasoned that Diese's statement ("[Y]ou have nowhere to go. You have no one to help you"), in conjunction with N.B. crying and seeming upset throughout; N.B.'s statements ("I ain't doing that. You're my mom's boyfriend. You should be doing that with Mom, not me"); and Diese's mention of N.B.'s pants being down, showed that Diese's statements were threats of extortion and unlawful requests, and thus, admissible. The trial court also found that the second part of the recording only contained crying and the sound of running water. Since the second part did not contain any verbal conversation, it was not subject to RCW 9.73.030(1)(b). Thus, the trial court ruled that the recording was admissible under RCW 9.73.030(2)(b).
RCW 9.73.030(1)(b) states:
RCW 9.73.030(2)(b) states:
2. Evidence of Diese's Prior Misconduct
The State moved to admit evidence that Diese raped N.B. from 2008-2009, and that he assaulted N.B. in 2008-2009. Diese objected and argued that evidence of prior misconduct was inadmissible under ER 404(b).
The trial court ruled that evidence of the prior rapes was admissible after finding that (1) the State established by a preponderance of the evidence the acts occurred because N.B. testified to the rapes in 2008-2009 and Diese did not want to be alone with N.B.; (2) the purpose of admission was to show (a) lustful disposition, because in "the period of time [Diese] had direct access to [N.B.], there were a number of sexual assault allegations, and then that period of time where he had limited to no contact . . . there were no allegations, " and (b) a common plan or scheme, because the prior rapes and the rape for which Diese was charged "share the common feature, that the victim was isolated [and] pressured"; (3) the evidence was relevant and probative; and (4) the probative value outweighed the prejudicial effect. 10 VRP at 1139-1140. The trial court also ruled that evidence of the 2008-2009 assault was admissible after finding that (1) the State established by a preponderance of the evidence the acts occurred because three witnesses testified to the event; (2) the purpose of admission was to show forcible compulsion because the assault helped show why N.B. was afraid of Diese; (3) the evidence was relevant and probative to understanding why N.B. did not put up more resistance on February 23, 2014; and (4) the probative value outweighed the prejudicial effect.
3. Evidence of N.B.'s Prior Sexual Activity
Diese moved to admit evidence of N.B.'s prior sexual activity, which consisted of text messages sent before and after February 23, 2014, with sexually explicit photos of N.B. and references to sexual activities, including the mention of using a sex toy. Diese argued that the evidence would be used to prove Diese was not the cause of N.B.'s hematoma and to impeach N.B. on her prior statements.
The trial court found that the text messages did not directly admit that N.B. participated in other sexual activity around February 23, 2014 and that the most recent evidence of any sexual activity occurred over a month before on January 12, 2014. Therefore, the trial court ruled that the evidence was not relevant to proving the source of the hematoma and not admissible.
C. Trial Proceedings
At trial, N.B. testified that Diese raped her when she lived with him in 2008-2009; threw her into a wall, which resulted in a fat lip; threw her and Dual out of his home in May 2009; and raped her on February 23, 2014. Kary Diese and Tyler Lobes also testified to N.B. having a fat lip at one point. The trial court gave the jury a limiting instruction regarding the purpose of the evidence relating to the events in 2008 and 2009.
After N.B. testified, the State sought to introduce N.B.'s cell phone recording. Diese objected based on lack of proper foundation, but the trial court admitted and played the recording after finding that the recording was sufficiently identified and the proper foundation was laid.
Dual testified and stated that she received letters, cards, and a phone call from Diese while he was in jail. The State sought to admit these letters and cards. Outside the presence of the jury, Diese argued that the mention of him in jail resulted in prejudice-jeopardizing the presumption of innocence-and that no instruction could cure the prejudice. The trial court offered to give an instruction to the jury, but Diese declined and asked for a mistrial. The trial court denied Diese's request for mistrial, but ordered all references to Diese being in jail be redacted from the letters and cards, and admitted the redacted documents. The trial court also instructed the parties that there was to be no further mention of Diese being in jail.
Diese sought a lesser degree instruction on third degree rape. The trial court denied the request. The trial court, adopting the reasoning of State v. Ieremia, 78 Wn.App. 746, 899 P.2d 16 (1995), review denied, 128 Wn.2d 1009 (1996), held that Diese was not entitled to a third degree rape instruction because there was no evidence that the intercourse was nonconsensual and unforced; if the jury believed N.B., Diese was guilty of rape in the second degree, and if it believed Diese, he was not guilty of any rape.
During closing arguments, Diese played the admitted cell phone recording. The jury requested to hear the recording again during jury deliberations because they had missed words the first time and wanted to be closer to the recording. Diese did not object. The trial court obliged and replayed the recording in the courtroom.
After further deliberation, the jury asked, "There's an undecided jury (divided, members on both sides who state they have made their decision and won't budge). Does a divided jury mean not guilty?" 9 VRP at 982. Over Diese's objection, the trial court responded no to the jury's question. The trial court noted that the jury had deliberated for less than three hours. It was also mindful of avoiding any jury coercion that may result from polling too soon. Fifteen minutes later, the jury asked what their options were on a split jury. The trial court then polled the jury to determine whether there was a reasonable probability of reaching a verdict. Ten jurors said no and two said yes. Diese moved for a mistrial, but the trial court denied the motion and instructed the jury to "continue to deliberate." 9 VRP at 990.
The jury then requested to hear the cell phone recording one more time after one of the jurors disclosed that he had difficulty hearing a good portion of the audio and asked that an amplified version be played. The trial court noted that case law allowed the recording to be replayed and that the recording was a good portion of the evidence. The trial court offered counsel the option of either replaying the recording or calling in an alternate juror. In response to the trial court's offer, Diese stated that "it's not like this is a great recording. So there's only going to be some degree that any individual is going to be able to hear it" and that he did not want to use an alternate juror at this point of the trial. 9 VRP at 992. The recording was replayed one more time with an assisted listening device provided to the juror who had disclosed he had difficulty hearing. The jury was then released for the weekend and instructed to return on the next judicial day to continue deliberations.
When the jury commenced deliberations after the weekend, the jury found Diese guilty as charged. Diese appeals.
ANALYSIS
A. Lesser Degree Rape in the Third Degree Instruction
Diese argues that the trial court erred when it refused to instruct the jury on rape in the third degree as a lesser degree offense. We hold that the trial court did not abuse its discretion when it declined to instruct the jury on rape in the third degree because the evidence did not support an inference that Diese only committed rape in the third degree.
1. Legal Principles
We review a trial court's refusal to give an instruction on a lesser degree offense, based on a factual dispute, for an abuse of discretion. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
A defendant charged with an offense consisting of different degrees may be found guilty of a lesser degree of the charged offense. RCW 10.61.003. A jury instruction on a lesser degree offense is proper when "(1) the statutes for both the charged offense and the proposed [lesser] degree offense proscribe but one offense; (2) the information charges an offense that is divided into degrees, and the proposed offense is [a lesser] degree of the charged offense; and (3) there is evidence that the defendant committed only the [lesser] offense." State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (internal quotation marks omitted) (quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997)).
In determining whether the evidence supports giving a lesser degree instruction, the evidence must be viewed in the light most favorable to the party requesting the instruction. Id. at 455-56. The evidence must support an inference that the defendant committed only the lesser degree offense instead of the greater one. State v. Ieremia, 78 Wn.App. 746, 755, 899 P.2d 16 (1995).
A person is guilty of second degree rape when the person engages in sexual intercourse with another person by forcible compulsion. RCW 9A.44.050(1)(a). Forcible compulsion is "physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person." RCW 9A.44.010(6).
A person is guilty of rape in the third degree when the person engages in sexual intercourse with another person without consent and "such lack of consent was clearly expressed by the victim's words or conduct." RCW 9A.44.060(1)(a). In other words, third degree rape requires a showing of unforced nonconsensual sexual intercourse. Ieremia, 78 Wn.App. at 756.
2. Lesser Degree Instruction Not Supported By The Evidence
Diese argues that the trial court erred because the evidence only showed Diese committed third degree rape as there was no evidence of forcible compulsion. We disagree.
Diese argues that when the evidence is viewed in the light most favorable to the defense, the jury could find there was no forcible compulsion because "N.B. did not offer any resistance which was overcome by physical force, and there was no threat, express or implied, which placed her in fear other than a threat that she would be kicked out of the house." Br. of Appellant at 30. However, the record belies Diese's argument.
At trial, Diese denied that he raped N.B., either in the past or on February 23, 2014. N.B. testified that she was scared of Diese because he had raped her when they lived together from 2008-2009, her resistance then was ineffective, and he had thrown her against a wall and gave her a fat lip. N.B. also testified that on February 23, 2014, Diese tightly grabbed her hand, and told her that she had nowhere to go and no one to help her. She tried to pull her hand back when Diese grabbed her, but he started counting down. Because she was scared of him due to his past violence, she complied with his demand to get up. N.B. also tried to push Diese away while in the bathroom, but was unsuccessful.
If the jury believed N.B., the evidence showed that Diese used physical force to overcome resistance. And Diese's counting down along with his other statements and past acts constituted, at the very least, an implied threat of physical injury. Even when the evidence is viewed in the light most favorable to Diese, the evidence fails to support Diese's assertion that he only committed third degree rape, not second degree rape. Therefore, we hold that the trial court did not abuse its discretion when it declined to instruct the jury on rape in the third degree.
B. Admission of Cell Phone Recording and Diese's Prior Misconduct
1. Cell Phone Recording
Diese argues that the trial court erred when it admitted the cell phone recording of a conversation between him and N.B. We disagree.
It is unlawful to record a private conversation without first obtaining the consent of all persons in the conversation. RCW 9.73.030(1)(b). Any recordings obtained in violation of this statute are generally inadmissible in court. RCW 9.73.050. However, conversations that "convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands" may be recorded with the consent of only one party to the conversation and are admissible. RCW 9.73.030(2)(b).
The trial court considered the cell phone recording in two parts, and we do the same. We review a trial court's legal conclusions on a motion to suppress de novo. State v. Roden, 179 Wn.2d 893, 898, 321 P.3d 1183 (2014).
The parties do not dispute that the interaction was private.
In determining when a communication between individuals constitutes a "conversation" under RCW 9.73.030, courts have used the ordinary meaning for the term "conversation"-oral exchange, discourse, or discussion. See State v. Smith, 85 Wn.2d 840, 846, 540 P.2d 424 (1975) (applying the ordinary meaning of a "conversation, " although holding that the court did not attempt to definitively define "private conversation."). However, RCW 9.73.030(1)(b) and RCW 9.73.050, which render a nonconsensual recording of a private conversation inadmissible as evidence, are not applicable to sounds of an event which do not constitute a "conversation." Id.
In the first part of the recording, Diese told N.B. that she "had to do everything he said without argument, " and N.B. agreed. 3 VRP at 245. The discussion then evolved into an exchange about N.B. moving out if she did not comply with Diese's demands. This communication between N.B. and Diese falls squarely within the ordinary meaning of a "conversation, " as it was a discussion and, at the very least, an oral exchange. Because the first part of the recording contained a conversation, the recording was a private conversation recorded without the consent of both parties and is subject to RCW 9.73.030(1)(b).
The second part of the recording contained only crying and the sound of running water. Because the second part of the recording did not include any verbal conversation, discussion, or exchange of any sort, it is more akin to the sounds of an event that are not subject to the restrictions of RCW 9.73.030(1)(b).
b. Exceptions
While private conversations recorded without the consent of both parties are typically inadmissible under RCW 9.73.050, conversations that include threats of extortion and unlawful requests are not subject to the same exclusions. RCW 9.73.030(2)(b). The threat exception applies to more than conversations where the defendant expressly states the threat of bodily harm. State v. Babcock, 168 Wn.App. 598, 609, 279 P.3d 890 (2012).
Diese argues that the trial court improperly admitted the cell phone recording because the recording did not include threats of bodily harm. However, the trial court did not admit the recording on that basis; instead, it admitted the recording because it found that it contained threats of extortion and unlawful requests. Furthermore, the threat exception under RCW 9.73.030(2)(b) applies to more than just conversations where the defendant expressly states the threat of bodily harm. Babcock, 168 Wn.App. at 609.
i. Threats of extortion
Diese's statements captured within the first part of the cell phone recording constitute threats of extortion. Threats of extortion are expressly excepted from the restrictions of RCW 9.73.030(1)(b). RCW 9.73.030(2)(b).
Extortion is not defined in the statute. Therefore, we look to its ordinary meaning. State v. Gonzalez, 168 Wn.2d 256, 263, 226 P.3d 131 (2010). The dictionary defines "extortion" as "the act or practice of extorting, " which is further defined as "to obtain from an unwilling or reluctant person by physical force, intimidation, or the abuse of legal or official authority." Webster's New Third International Dictionary 806 (1969).
Here, the recording shows that Diese tried to intimidate and threaten N.B. with eviction when she did not comply with his demands. The recorded conversation in the recording has Diese telling N.B. (1) to "Drop them"; (2) that he had to go "tell [Dual] and get [N.B.] out of here" because N.B. would not allow him to do whatever he wanted with her; (3) that she had "nowhere to go" and "no one to help" her; and (4) that her "pants [were] already halfway off so "[l]et's go. Right now. Stand up. Come on." 1 VRP at 35-36. These statements, combined with N.B. seeming upset and crying throughout the recording and her statement, "I ain't doing that. You're my mom's boyfriend. You should be doing that with Mom, not me, " rendered Diese's statements threats of homelessness used to extort sexual intercourse from N.B. 1 VRP at 35. While Diese argues that his statements were references to N.B. doing chores, his argument is undermined by N.B.'s statement that Diese should be doing that with Dual and not her. Diese's threats amounted to "extortion" within the plain meaning of the term. Therefore, we hold that the recording met the exception of RCW 9.73.030(2)(b), and the trial court did not err in admitting it.
ii. Unlawful requests
Diese's statements captured within the recording also constitute unlawful requests. It is unlawful for a person to engage in sexual intercourse with another person without the other person's consent. See ch. 9A.44 RCW. Here, as discussed above, Diese's statements in the recording were threats of extortion, attempting to elicit sexual intercourse from N.B. against her will with threats that he would have to "get [N.B.] out of [the house]" and that she had "nowhere to go" and "no one to help" her. 1 VRP at 35-36. Such statements also constitute unlawful requests as it is unlawful to engage in nonconsensual sexual intercourse. Ch. 9A.44 RCW. N.B. expressly refused to comply with Diese's demand to drop her pants and told Diese that he should be doing that with Dual instead of her. Nonetheless, Diese insisted that she get up and noted that N.B.'s pants were already halfway off. Therefore, we hold that the trial court did not err in admitting N.B.'s recording because it contained a conversation conveying unlawful requests in addition to threats of extortion.
2. Evidence of Diese's Prior Misconduct
Diese claims that the trial court erred when it admitted evidence of his prior rapes and assault against N.B. We disagree.
a. Legal principles
We review the trial court's admission of evidence for an abuse of discretion. State v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004). A trial court abuses its discretion when its decision is based on untenable grounds or untenable reasons. State v. Barnett, 104 Wn.App. 191, 199, 16 P.3d 74 (2001).
Generally, evidence of a defendant's prior crimes, wrongs, or acts is not admissible to show that he has a propensity to commit crimes. ER 404(b); State v. Gunderson, 181 Wn.2d 916, 921, 337 P.3d 1090 (2014). But such evidence may be admitted for other purposes, such as proof of the defendant's lustful disposition towards the victim or to prove a common scheme or plan. State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012); State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220 (1991).
When the State offers evidence of a defendant's prior misconduct, before admitting the evidence, the trial court must (1) find by a preponderance of the evidence that the prior misconduct occurred; (2) identify the purpose for introducing the evidence; (3) determine whether the evidence is relevant to prove an element of the crime charged; and (4) balance the probative value of the evidence against its prejudicial effect. Gunderson, 181 Wn.2d at 923; ER 403; ER 404(b). The trial court must conduct this analysis on the record. State v. Slocum, 183 Wn.App. 438, 448, 333 P.3d 541 (2014).
Evidence of prior sexual misconduct may be admitted to show the defendant's lustful disposition toward the victim. Ray, 116 Wn.2d at 547. Such evidence is admissible "for the purpose of showing the lustful inclination of the defendant toward the [victim], which in turn makes it more probable that the defendant committed the offense charged." Id. (internal quotation marks omitted). "The limits of time over which evidence may range lies within the discretion of the trial court." Id. Such evidence is admissible even if it is not corroborated by other evidence. Id.
Evidence of prior misconduct is also admissible to show the existence of a common scheme or plan. Gresham, 173 Wn.2d at 421-22. To be admissible, such evidence must be offered to show that "the defendant has developed a plan and has again put that particular plan into action." Id. at 422. To introduce prior misconduct as evidence of a common plan or scheme, the prior misconduct must show "'common features that the various acts are naturally to be explained as caused by a general plan of which' the two are simply 'individual manifestations.'" Id. (quoting State v. Lough, 125 Wn.2d 847, 860, 889 P.2d 487 (1995)). The commonality between the prior misconduct and the charged crime "need not be 'a unique method of committing the crime.'" Id. (quoting State v. DeVincentis, 150 Wn.2d 11, 19-21, 74 P.3d 119 (2003)).
b. 2008-2009 Rapes
Diese argues that the trial court erred in admitting the prior rapes because of their remoteness in time and the absence of any corroborating evidence. We disagree.
Here, the trial court conducted the required analysis on the record and found that the prior rapes were admissible to show a lustful disposition towards N.B. because the prior rapes involved the same victim, N.B. The trial court did not find it significant that the prior rapes occurred prior to 2009. However, the trial court did find relevant the fact that during the periods Diese had access to N.B., "there were a number of sexual assault allegations, " but during the period of time where Diese did not have any opportunity to be alone with N.B. for any significant period of time in a private place, there were no allegations of rape against N.B. The trial court also found that the prior rapes were admissible to show a common scheme or plan because the prior rapes and the charged crime shared the common feature of isolating and pressuring N.B. by threatening punishment or being kicked out of the house in exchange for sexual contact. Finding that the prior rapes were relevant and probative to the charged crime and the probative value of the evidence outweighed the prejudicial effect, the trial court admitted the evidence of prior rapes against N.B. for the purpose of showing lustful disposition and common scheme or plan.
Diese fails to show how the trial court abused its discretion in determining the remoteness of the prior rapes was not significant under the circumstances. And corroborating evidence is not necessary. Also, Diese was able to respond to and deny N.B.'s allegations of prior rapes and the trial court gave a limiting instruction, instructing the jury that the prior rapes are limited to showing lustful disposition and a common scheme or plan. We assume the jury follows the court's instructions. State v. Lord, 117 Wn.2d 829, 861, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992). Thus, we hold that the trial court did not abuse its discretion in admitting the prior rapes as evidence of lustful disposition and common scheme or plan.
c. Prior assault
Diese also argues that the trial court erred in admitting evidence of his prior assault of N.B. We disagree.
i. Preponderance of the evidence that the assault occurred
N.B. testified about the prior assault, and two other witnesses corroborated that she had a fat lip. Therefore, the occurrence of the assault was established by a preponderance of the evidence.
ii. Purpose and relevance for admitting evidence of the assault
Evidence of prior misconduct, while inadmissible to prove propensity, is admissible to prove a victim's state of mind. State v. Fisher, 165 Wn.2d 727, 744, 202 P.3d 937 (2009). At trial, N.B. indicated that she was afraid of Diese and always had been. She testified that Diese had thrown her against a wall and gave her a fat lip on one occasion. N.B. also testified that she pulled back when Diese grabbed her on February 23, 2014, but because he started counting down and she was afraid of him due to his past violence, she got up. Thus, the evidence of Diese's prior assault of N.B. was relevant to show N.B.'s state of mind, demonstrating why N.B. was afraid of Diese. This is a proper purpose.
Moreover, the evidence was relevant and probative to understanding why N.B. did not put up more resistance on February 23, 2014. That day, N.B. complied with Diese's demand to get up and walked with him to the bathroom after Diese had tightly grabbed her hand and started counting down. While someone who is about to be raped may put up greater resistance, N.B. did not do so because she was mindful of his prior violence and afraid of Diese. Evidence of the prior assault is relevant and highly probative to proving N.B.'s lack of resistance due to fear. Therefore, the trial court did not abuse its discretion when it admitted evidence of Diese's prior assault to show N.B.'s state of mind.
iii. Probative value and prejudicial effect of the prior assault
Here, the evidence of the prior assault was relevant to proving forcible compulsion because Diese had placed N.B. in fear of physical injury. The prior assault in 2008-2009, during which N.B. received a fat lip, was a direct example of such prior violence and probative of why N.B. perceived Diese's statements and actions on February 23, 2014 as an implied threat.
Although evidence of such prior misconduct may be prejudicial, such prejudice was mitigated. Diese explained the circumstances surrounding the event, testified to making real changes in his life and attending therapy, and noted that such changes led him to rekindle his relationship with Dual. Additionally, the trial court gave an instruction that limited consideration of the prior assault to determining N.B.'s state of mind. As a result, the probative value of the evidence of the prior assault outweighed its prejudicial effect. Therefore, we hold that the trial court did not abuse its discretion when it admitted evidence of Diese's prior assault on N.B.
C. Exclusion of Sexual Text Messages and Photos
Diese argues that the trial court erred when it excluded evidence of N.B.'s sexual text messages and photos. We disagree.
1. Legal Principles
We review decisions by the trial court to admit or exclude evidence for abuse of discretion. City of Kennewick v. Day, 142 Wn.2d 1, 5, 11 P.3d 304 (2000). The trial court abuses its discretion if its "discretion [is] manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Id. (quoting State v. McDonald, 138 Wn.2d 680, 696, 981 P.2d 443 (1999)) (alteration in original). However, we may affirm on any ground adequately supported by the record, and the exclusion of evidence lies largely within the discretion of the trial court. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004); Thomas, 150 Wn.2d at 869. Ultimately, the appellant bears the burden of proving an abuse of discretion. State v. Hentz, 32 Wn.App. 186, 190, 647 P.2d 39 (1982), rev'd on other grounds, 99 Wn.2d 538 (1983).
Under Washington's Rape Shield statute evidence of a victim's past sexual behavior is inadmissible to prove credibility or consent. RCW 9A.44.020(2). Such evidence is only admissible if (1) it is relevant to the issue of the victim's consent; (2) its probative value is not substantially outweighed by the danger of undue prejudice; and (3) its exclusion would result in denial of substantial justice to the defendant. RCW 9A.44.020(2), (3)(d).
Evidence is relevant if it has any tendency to make a fact of consequence more or less probable. ER 401. The threshold for relevance is low. State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002) (noting that "[e]ven minimally relevant evidence is admissible."). But the trial court has considerable discretion in considering relevancy of evidence. State v. Barry, 184 Wn.App. 790, 801, 339 P.3d 200 (2014).
Extrinsic evidence is not admissible to prove a witness's character for truthfulness. ER 608. However, a witness can be cross-examined about specific instances of truthfulness. ER 608(b).
2. Text Messages and Photos Properly Excluded
Diese argues that N.B.'s text messages and photos were relevant to prove Diese was not the cause of N.B.'s hematoma and to impeach N.B. on her previous statements. While the threshold for relevance is low, the text messages and photos do not meet that threshold.
The most recent evidence of any possible sexual activity by N.B. was in the January 12, 2014 text message. And because the nurse who examined N.B. stated that she would not expect to see a hematoma four days after the sexual assault, any alleged sexual activity over a month before the sexual assault was not likely to have been the cause of the hematoma. Therefore, the text messages and photos were not relevant to show an alternative source for the hematoma.
Diese also argues that the messages and photos directly undermine N.B.'s credibility that she was distraught and traumatized by the incident. However, extrinsic evidence is not admissible to prove a witness's character for truthfulness and can only be asked about on cross-examination. ER 608(b). While the trial court in this case did not allow the text messages and photos to be admitted, it did not prohibit Diese from asking about the specific instances on cross-examination. Furthermore, although the sexual photographs sent via text messaging establish the date the photo was sent, they did not establish the date the photo was taken. And the text messages merely suggested that N.B. was sexually promiscuous, which is the exact reason why the Rape Shield statute excludes such evidence.
Although Diese suggests that admission of the messages was required to preserve his right to present a meaningful defense, the trial court did not prohibit him from cross-examining N.B. about her previous statements. The trial court excluded the text messages and photos based on lack of relevance, which was supported by the record and Washington's Rape Shield statute. The trial court did not exercise its discretion on untenable grounds or for untenable reasons. Therefore, we hold that the trial court did not abuse its discretion when it excluded N.B.'s text messages and photos.
D. Motion for Mistrial
Diese argues that the trial court erred when it denied his motion for a mistrial after Dual mentioned receiving letters from him while he was in jail. We disagree.
We review a trial court's denial of a motion for a mistrial for an abuse of discretion. State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012). A new trial will only be granted based on a trial irregularity when there is a substantial likelihood the resulting prejudice affected the jury's verdict. State v. Young, 129 Wn.App. 468, 472-73, 119 P.3d 870 (2005). To determine whether there was a substantial likelihood the prejudice affected the jury's verdict, we consider three factors: (1) the irregularity's seriousness; (2) whether it involved cumulative evidence; and (3) whether the trial court properly instructed the jury to disregard it. Emery, 174 Wn.2d at 765. A mistrial is only warranted when the prejudice is so great that a new trial is the only way to ensure that the defendant will be fairly tried. Id. at 765.
The presumption of innocence flows from the right to a fair trial. Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). This presumption may be violated when a defendant appears in court physically restrained because such restraints are inherently prejudicial. State v. Finch, 137 Wn.2d 792, 844-45, 975 P.2d 967 (1999). Although references to a defendant being in custody can result in some prejudice, they do not rise to the same level as physical restraints because jurors "must be expected to know that a person awaiting trial will often do so in custody." State v. Mullin-Coston, 115 Wn.App. 679, 693, 64 P.3d 40 (2003), aff'd, 152 Wn.2d 107, 95 P.3d 321 (2004).
Here, the testimony of Diese being in jail did not result in prejudice so great that it warranted a mistrial. At trial, Dual testified that she received letters, cards, and a phone call from Diese while he was in jail. When Diese objected, he argued that the mention of him in jail resulted in prejudice that could not be cured with an instruction and asked for a mistrial. The trial court denied the motion for a mistrial, but ordered the letters and cards be redacted to remove any references to Diese being in jail before admitting the redacted documents. The trial court also ordered the parties to not comment on Diese being in jail. Although the evidence was not cumulative, the trial court took steps to reduce any potential prejudice to Diese. Also, the trial court offered to give an instruction to the jury, but Diese declined. Thus, Diese waives any error by declining the trial court's offer to give an instruction. State v. Russell, 33 Wn.App. 579, 588, 657 P.2d 338 (1983), aff'd in part, rev 'd in part on other grounds, 101 Wn.2d 349, 678 P.2d 332 (1984). We hold that the trial court did not abuse its discretion when it denied Diese's motion for a mistrial.
E. Replay of Admitted Recording During Jury Deliberations
Diese argues that the trial court erred when it allowed the jury to hear N.B.'s recording during deliberations. We hold that the trial court did not abuse its discretion when it replayed N.B.'s recording during deliberations.
1. Legal Principles
We review a trial court's decision to replay an electronically recorded exhibit that is properly admitted for an abuse of discretion. State v. Frazier, 99 Wn.2d 180, 190-91, 661 P.2d 126 (1983). We find an abuse of discretion only if no reasonable person could have taken the view chosen by the trial court. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997).
The jury is allowed to take all admitted exhibits into the jury room during deliberations. CrR 6.15(e); Castellanos, 132 Wn.2d at 97. A trial court may permit the replaying of an admitted exhibit but should do so in a "way that is least likely to be seen as a comment on the evidence, in a way that is not unfairly prejudicial and in a way that minimizes the possibility that jurors will give undue weight to such evidence." CrR 6.15(f)(1). A trial court's control of the jury's access to the recording is a method to reduce any prejudice. Castellanos, 132 Wn.2d at 98-100.
2. No Abuse of Discretion by Allowing Replay of Admitted Recording
Here, the trial court's replay of N.B.'s admitted cell phone recording during deliberations was permitted under CrR 6.15. During deliberations, the jury requested replay of N.B.'s admitted recording because they had previously missed words. Although a jury is allowed to take all admitted exhibits into the jury room during deliberations, the trial court replayed the recording in the courtroom, without objection. The jury requested replay of the admitted recording a second time because one juror could not hear a part of the recording. The request was again accommodated by replaying recording in the courtroom. Thus, the trial court maintained control of the recording to reduce any prejudicial effects.
Diese argues that replaying the recording for the jury during deliberations placed undue emphasis on N.B.'s testimony and likely stimulated an emotional response. However, the record shows that trial court only replayed the recording because the jury was not able to hear the recording very well. Even Diese admitted that the recording was not easy to hear. Also, Diese apparently did not deem the recording to be unfairly prejudicial because he also played the recording during closing arguments. Therefore, we hold that the trial court did not abuse its discretion when it allowed the jury to hear N.B.'s recording twice during deliberations.
F. Instruction to Continue Deliberation
Diese argues that the trial court violated his due process rights when it instructed the jury to continue deliberations after the jury stated it was divided. We disagree.
1. Legal Principles
We review constitutional claims de novo. State v. Irby, 170 Wn.2d 874, 880, 246 P.3d 796 (2011). When a jury is undecided on a general verdict, the trial court has authority, after polling the jurors, to instruct the jury to continue deliberations. CrR 6.16(a)(3). But the court "shall not instruct the jury in such a way as to suggest the need for agreement, the consequences of no agreement, or the length of time a jury will be required to deliberate." CrR 6.15(f)(2).
If it appears that the jury is deadlocked-that there is no reasonable probability of the jurors reaching agreement-the jury may be discharged by the court on consent of both parties. CrR 6.10. The trial court may then declare a mistrial if extraordinary and striking circumstances justify such action; there must be a factual basis for the court's determination that the jury is hopelessly deadlocked. State v. Burdette, 178 Wn.App. 183, 195, 313 P.3d 1235 (2013). In making this determination, the trial court has broad discretion and may consider the length of jury deliberations relative to the length of the trial and the complexity of issues and evidence. State v. Jones, 97 Wn.2d 159, 164, 641 P.2d 708 (1982).
2. Reasonable Probability of Reaching Agreement
Diese argues that the jury was deadlocked when they asked about an undecided jury, which warranted a mistrial, and that the trial court failed to consider the length of deliberations or the complexity of the issues. The record shows otherwise.
Here, the jury began deliberating on the fourth day of trial. The jurors had deliberated for only a short period of time before declaring they were divided. The jury notified the court that "[t]here's an undecided jury (divided, members on both sides who state they have made their decision and won't budge). Does a divided jury mean not guilty?" 9 VRP at 982. The jury had deliberated for less than three hours, and the trial court tried to avoid any jury coercion by not polling too soon. Therefore, the trial court responded no to the jury's question. Thus, the trial court did consider the length of deliberations and was mindful of possible jury coercion.
Fifteen minutes after receiving the trial court's response, the jury asked what their options were on a split jury. The trial court then polled the jury on whether there was a reasonable probability of reaching a verdict. Ten jurors said no and two said yes. Diese then moved for a mistrial, but the trial court denied the motion and instructed the jury to "continue to deliberate." 9 VRP at 990. At that point, the jury had deliberated for only three hours after a four-day trial. The jury continued deliberating for another hour and fifty-five minutes before the trial court instructed them to return on the next judicial day to resume their deliberations. Given these circumstances, we hold that the trial court did not abuse its discretion in determining that there was a reasonable probability the jurors would reach an agreement and instructing them to continue deliberating.
G. Ineffective Assistance of Counsel
Diese argues that he received ineffective assistance of counsel when defense counsel failed to move for a mistrial or new trial after a juror disclosed that he had trouble hearing the admitted cell phone recording. We disagree.
1. Legal Principles
We review claims of ineffective assistance de novo. In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001). To prevail on a claim of ineffective assistance, the defendant must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice occurs when there is reasonable probability that but for counsel's errors, the result of the proceeding would have been different. Lord, 117 Wn.2d at 883-84.
There is a strong presumption of effective assistance, and the defendant bears the burden of rebutting that presumption by showing the lack of a legitimate strategic or tactical reason for the challenged conduct. State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251 (1995). Failure to move for a mistrial or curative instruction "strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991).
"A trial court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant receives a fair trial." State v. Jungers, 125 Wn.App. 895, 901-02, 106 P.3d 827 (2005). The declaration of a mistrial is a "drastic measure, " and the trial court may exercise other options to remedy the event in question based on the particular facts of the situation. See State v. Falk, 17 Wn.App. 905, 908, 567 P.2d 235 (1977).
2. Effective Assistance of Counsel
Here, Diese fails to show that defense counsel's failure to move for a mistrial or new trial was unreasonable or not a legitimate trial tactic. During deliberations, one of the jurors disclosed that he had difficulty hearing a good portion of the cell phone recording and asked for an amplified version. At this point, the jury had already twice informed the trial court that it was divided. It was reasonable for defense counsel to determine that maintaining the composition of the jury for a possible hung jury was a better tactical choice over seeking a mistrial. Also, defense counsel played the recording during closing arguments; therefore, it was reasonable for defense counsel to want all jurors to hear evidence helpful to the defense theory of the case.
Diese also fails to show a motion for a mistrial or new trial would likely have been granted. The circumstances here do not warrant a mistrial or new trial. The jury asked for the recording to be amplified because a juror had difficulty hearing the recording. Defense counsel admitted that the recording was not a "great recording." 9 VRP at 992. There is no evidence that the juror had difficulty hearing any other evidence presented during trial. Also, a jury has the ability to access an admitted exhibit during deliberations. Therefore, the record does support any basis for the trial court to grant a mistrial or new trial. We hold that defense counsel did not provide ineffective assistance when she failed to move for a mistrial or new trial.
H. Cumulative Error
Diese argues that cumulative error denied him a fair trial. We disagree.
The cumulative error doctrine applies when more than one error occurred at the trial court level, but none alone warrant reversal. State v. Hodges, 118 Wn.App. 668, 673-74, 77 P.3d 375 (2003), review denied, 151 Wn.2d 1031 (1984). Numerous errors, harmless standing alone, can deprive a defendant of a fair trial. State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). The defendant bears the burden of proving the cumulative effect of the errors is of a sufficient magnitude that retrial is necessary. In re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 123 Wn.2d 737, 868 P.2d 835, cert. denied, 513 U.S. 849 (1994). Where no prejudicial error is shown, we do not apply the cumulative error doctrine. State v. Stevens, 58 Wn.App. 478, 498, 794 P.2d 38, review denied, 115 Wn.2d 1025 (1990).
Here, we find no error. Therefore, Diese is not entitled to relief based on cumulative error.
I. Statement of Additional Grounds
Diese also filed a SAG, arguing that (1) transcripts were missing; and (2) the trial court erred when it admitted the statements he made to the police because he was not Mirandized. We disagree.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
1. Missing Transcripts
Diese argues that there were missing transcripts from his first appearance and hearings for readiness, ER 404(b) evidence, CrR 3.5 confessions, motion to recuse, and motion for a mistrial. However, transcripts for these appearances and hearings are in the appellate record. Therefore, we hold that Diese's argument fails because it is factually meritless.
2. Custodial Statements
Diese argues that the trial court erred when it admitted the statements he made to the police because he was not Mirandized. Diese made two statements to police while being placed under arrest, one while being advised of his charges and one while on the way to jail. A CrR 3.5 hearing was held, and the trial court only admitted the statement Diese made while on the way to jail because it was voluntary and not in response to any conduct designed to elicit a response. When a person voluntarily and spontaneously makes a statement to the police, those statements are admissible. State v. Cloud, 7 Wn.App. 211, 214, 498 P.2d 907, review denied, 81 Wn.2d 1005 (1972). Therefore, we hold that Diese's argument fails.
CONCLUSION
The trial court did not err in refusing to instruct the jury on a lesser degree offense; admitting N.B.'s cell phone recording and evidence of Diese's prior misconduct; excluding evidence of N.B.'s sexual behavior; denying Diese's motion for a mistrial; allowing the jury to hear the admitted cell phone recording during deliberations; and instructing the jury to continue deliberations. Also, defense counsel did not provide ineffective assistance, and there is no cumulative error. And Diese's SAG arguments fail. Accordingly, we affirm.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Worswick, P.J. Sutton, J.
(1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, . . . to intercept, or record any:
. . . .
(b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.
(2) Notwithstanding subsection (1) of this section, wire communications or conversations . . . (b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands.