Opinion
No. 27484-1-II c/w 27800-6-II.
Filed: August 26, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County Docket No: 01-1-00784-1 Judgment or order under review Date filed: 06/01/2001
Counsel for Appellant(s), Rita Joan Griffith, Attorney at Law, 1305 NE 45th St. Ste 205, Seattle, WA 98105-4523.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Two separate juries convicted Melvin Harrison of a total of four counts of assaulting his girlfriend, Randella Phillips. The charges were based on incidents occurring in November 2000, and January 2001. Despite Phillips insisting at trial that the events never occurred, the juries convicted Harrison. The trial court sentenced Harrison to serve two consecutive standard range sentences. On appeal, Harrison alleges that he received ineffective assistance from his counsel, raises numerous evidentiary issues and disputes the trial court's computation of his offender score and imposition of consecutive sentences. We affirm Harrison's convictions but remand for resentencing on his second assault conviction.
FACTS
First Appeal — November Assaults (No. 27484-1-II)
Phillips met Harrison at the telemarketing company where she worked. When Phillips was 18, she and Harrison began a romantic relationship and Phillips became pregnant. Harrison and Phillips began renting an apartment together. In October 2000, Phillips's mother moved in with the couple at Harrison's request.
Phillips's mother testified that, on November 10, 2000, she witnessed an argument between Phillips, who was nine months pregnant, and Harrison. When Phillips got in her car and tried to leave, Harrison entered his car and rammed Phillips's car. Both vehicles were damaged, but Phillips was not physically injured. After ramming Phillips's car, Harrison got out of his car and entered the passenger side of Phillips's car. Harrison pulled a gun on Phillips and threatened to kill her. Because Phillips's mother acquiesced in Phillips's request that she not report the incident to the police, she did not report the incident to the Tacoma Police Department until February 5, 2001.
At trial, Phillips explained her damaged car very differently, claiming that her car was damaged in an accident in January 2001. She testified that she and Harrison were driving on Highway 99 when a truck ran them off the road, forcing her car into a ditch. Phillips denied that any assault occurred on November 10, 2000, and claimed that Phillips's mother fabricated the story because she disliked Harrison. The jury found Harrison guilty on two counts of second degree assault (domestic violence) for the events occurring on November 10, 2000, but did not find that Harrison was armed with a deadly weapon on the second count. When the trial court calculated Harrison's offender score, the court noted the ramming of Phillips's vehicle and the subsequent threat to kill made after he entered her car as separate offenses. The court imposed a sentence of 43 months.
Second Appeal — January Assaults (No. 27800-6-II)
On January 16, 2001, at approximately 4:00 a.m., Phillips went to her neighbor Constance Bauer's home. In a frightened voice, she told Bauer that her boyfriend was trying to kill her. Phillips wanted to call her mother, but Bauer convinced her to call the police.
Within minutes, Officer Jennifer Kramer responded to the call and took Phillips's statement. Phillips told Kramer that, earlier that evening, she and Harrison had gotten into an argument and that he had (1) slammed her head on a cupboard; (2) tried to drown her in the bathtub; and (3) held a gun to her head and tried to stab her. Phillips stated that she had fled to the Bauer home fearing for her life. Later that morning, the police entered Phillips's and Harrison's residence and recovered the knife and firearm allegedly used in the attack. Phillips told Kramer that Harrison put the knife on the stove. Phillips also told Officer Kelly where the gun was located.
At trial, Phillips provided a different account of these events. She testified that she and Harrison had argued that day about his relationships with other women and that he had contracted and infected her with a sexually transmitted disease. Phillips testified that her mother told her to concoct the story told to the police. To explain the injuries Bauer and Kramer observed, Phillips claimed that she fell and hit her head on the bathtub. Phillips stated that she made the call to the police because she was angry with Harrison for his infidelity but that she was recanting her earlier statement because she did not want to send an innocent man to jail.
A jury convicted Harrison of one count of second degree assault and one count of fourth degree assault for the events occurring January 16, 2001. The trial court imposed a standard range sentence of 50 months, ordering that this second sentence be served consecutive to the first. We consolidated the appeals of both convictions.
ANALYSIS Appeal of the November assaults I. Exclusion of expert testimony
Harrison challenges the trial court's refusal to allow defense witness James Towne to offer opinion testimony on how Phillips's car was damaged. Generally, opinion testimony may be offered only by an expert. ER 701, 702. Lay witnesses may not offer opinions, but should only state facts of which they have personal knowledge. ER 701; see State v. Smith, 16 Wn. App. 300, 302, 555 P.2d 431 (1976), review denied, 88 Wn.2d 1014 (1977). Expert testimony may be considered if it will assist the trier of fact in understanding the evidence or fact at issue. State v. Farr-Lenzini, 93 Wn. App. 453, 460, 970 P.2d 313 (1999). The decision to admit expert testimony is within the discretion of the trial court. State v. Stenson, 132 Wn.2d 668, 715, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).
Harrison argues that the superior court improperly excluded Towne's opinion evidence because his opinion testimony would have been helpful to the jury. However, when the court asked, Towne said that he could not render an opinion on the totality of the accident, but that he could discuss evidence such as paint transfer, lack of paint transfer, transfer of bumper material, and scraping. Towne agreed that these were factual observations. Moreover, the court noted that because Phillips's testimony did not indicate the locations or speeds of the vehicles, there was no foundation on which an accident reconstruction expert, assuming Towne qualified as one, could base an opinion. With the witness's admission of his limited ability to render opinion testimony, the trial court did not abuse its discretion by requiring that Towne limit his testimony to factual observations.
II. Exclusion of the Accident Report
Citing State v. Baird, 83 Wn. App. 477, 922 P.2d 157 (1996), review denied, 131 Wn.2d 1012 (1997), Harrison argues that the trial court interfered with his right to present a defense by excluding his insurer's appraisal request containing facts of the accident as recounted by Phillips and the testimony of the damage appraiser to whom the report was made. As is commonly known, hearsay is not admissible unless the rules provide otherwise. ER 802; State v. Neal, 144 Wn.2d 600, 605, 30 P.3d 1255 (2001). But Harrison argued to the trial court that the report should have been admitted under a business record exception because it was created "in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission." RCW 5.45.020. The trial court's decision to admit or exclude evidence under this provision is reviewed for manifest abuse of discretion. State v. Alexander, 64 Wn. App. 147, 156, 822 P.2d 1250 (1992).
Here, the trial court refused to admit the insurer's appraisal request under the business records exception and excluded the damage appraiser's testimony as to the contents of the report. Harrison argues that the insurance adjuster's report was admissible to corroborate Phillips's testimony that the damage to her car occurred in an accident in January and not November, and that the evidence should have been admitted to show not that an accident occurred, but that a claim was made. But neither of these arguments alters the fact that the accident claim and the conversation with the insurance adjuster were unsubstantiated extrajudicial reports based on Phillips's report made by Harrison's insurer and were, therefore, double hearsay.
The adjuster's report includes Harrison's statements relayed to the adjuster by Harrison's insurer and is hearsay within hearsay. Therefore, to be admissible both Harrison's and the insurer's hearsay statements must fall under a recognized exception to the rule excluding hearsay. ER 805; State v. Rice, 120 Wn.2d 549, 564, 844 P.2d 416 (1993). The trial court found that the damage appraiser did not author or ordinarily keep the reports in question. The reports are prepared by the insurance company and then sent to the appraiser. Even if the appraiser's report were to be admitted as a business record, it contains hearsay statements of others and Harrison failed to establish the admissibility of those statements at trial.
Harrison did not lay a proper foundation to admit the appraiser's report as a business record and the trial court did not err by excluding the document as double hearsay.
III. Denial of Mistrial
Harrison claims that his conviction should be reversed because of a remark by Phillips's mother during her testimony about a prior assault by Harrison on Phillips. Harrison did not move for a mistrial based on this remark, nor does his brief point to a motion for a mistrial. Instead Harrison cites two cases, State v. Wilburn, 51 Wn. App. 827, 832, 755 P.2d 842 (1988), and State v. Escalona, 49 Wn. App. 251, 253, 742 P.2d 190 (1987), in which convictions were reversed based on witness's references to prior criminal acts or convictions. But each of the cases cited involved trial court rulings on timely mistrial motions in which curative instructions were given, although in Escalona, counsel declined the court's offer of a curative instruction.
Whether a trial irregularity, such as an inadvertent remark, affected the jury's verdict requiring reversal of the verdict depends on several factors. See Escalona, 49 Wn. App. at 254. These factors are (1) the seriousness of the irregularity, (2) whether the statement in question was cumulative of other evidence properly admitted, and (3) whether the irregularity could be cured by an instruction to disregard the remark, an instruction which a jury is presumed to follow. Escalona, 49 Wn. App. at 254. We review the trial court's decision whether or not to grant a mistrial based on the prejudice of statements under an abuse of discretion standard. State v. Weber, 99 Wn.2d 158, 166, 659 P.2d 1102 (1983); Escalona, 49 Wn. App. at 254-55.
A. Seriousness of the irregularity
In Escalona, Division One reversed a conviction because of a witness's mention of prior convictions. 49 Wn. App. at 256. The reference to the defendant's prior conviction, coupled with weak evidence presented by the State, made the witness's remark in Escalona prejudicial. 49 Wn. App. at 256. Moreover, in Escalona, the logical relevance of the witness's statement that Escalona had a record and had stabbed someone before where Escalona was charged with assaulting the victim witness with a knife, was strong. 49 Wn. App. at 255-56. In this case, Harrison acknowledges that Phillips's mother's statements were "somewhat indirect." Having reviewed the record, we agree.
B. Cumulative of other evidence properly admitted Phillips's mother's remark was not repetitive of other admitted evidence.
C. Curative instruction
Here, whether the trial court should have granted Harrison a mistrial depends on whether the trial court's instruction to disregard the "somewhat indirect" remark cured its effect. To analyze this factor, we consider whether the remark was inherently prejudicial and likely to "impress itself upon the minds of the jurors." Escalona, 49 Wn. App. at 255 (quoting State v. Miles, 73 Wn.2d 67, 71, 436 P.2d 198 (1968). Phillips's mother remarked as follows:
Q You felt that way certainly when she got pregnant by Melvin, didn't you?
A No. November 10th I felt fear. I prayed. I stood there and I prayed. You don't touch nobody when they have a gun at somebody's head. I prayed. I prayed to the good Lord that he didn't pull the trigger. I never said he didn't provide for her; I never talked down to him. . . . Any time he talked about issue, Melvin came to me and talked to me about it. Not the first time he did that to my daughter.
Report of Proceedings (RP) (April 17, 2001) at 127. The trial court immediately struck the last statement and provided a curative instruction. Unlike the remark in Escalona, which explicitly referred to defendant's prior convictions, this remark did not reference any legal finding and was less likely to create a prejudicial effect impressing itself upon the jury's mind. The trial court did not abuse its discretion by deciding to give a curative instruction rather than sua sponte declaring a mistrial on this basis.
IV. Motion for mistrial
Harrison also argues that Tara Yardly's statement that Harrison was incarcerated for three or four months required the trial court to declare a mistrial. The exchange between the State and Yardly was as follows:
Q How many times have you seen the defendant face-to-face in the last three or four months?
A He has been incarcerated for the last three or four months; is that correct?
RP (April 18, 2001) at 297.
The trial court immediately struck the answer and provided a curative oral instruction to the jury. But this time Harrison moved for a mistrial. A trial court's decision to deny the defendant's motion for a mistrial will not be overturned unless there is a "substantial likelihood" that the error affected the jury's verdict. State v. Rodriguez, 146 Wn.2d 260, 269-70, 45 P.3d 541 (2002) (citations omitted). When reviewing a motion for a mistrial we apply an abuse of discretion standard. Rodriguez, 146 Wn.2d at 269. Abuse of discretion is found when "no reasonable judge would have reached the same conclusion." Rodriguez, 146 Wn.2d at 269 (quoting State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)). A new trial is granted only when the defendant is so prejudiced that only a new trial will ensure that the defendant is tried fairly. Rodriguez, 146 Wn.2d at 270.
Applying these standards to the current case, the trial court did not abuse its discretion by denying Harrison's request for a mistrial. The cases on which Harrison relies involved defendants being forced to appear in court in shackles or jail clothes, or the State's use of a mug shot causing a loss of presumption of innocence. State v. Finch, 137 Wn.2d 792, 851-53, 975 P.2d 967 (trial court improperly shackled defendant throughout the entire trial despite no evidence he posed a threat to anyone besides his estranged wife or that he was an escape risk), cert. denied, 528 U.S. 922 (1999); State v. Hartzog, 96 Wn.2d 383, 398-99, 635 P.2d 694 (1981) (broad general policy of physically restraining defendants improper).
These cases relate to the physical appearance of the defendant, whether in person or in photograph. Harrison failed to show that this incidental remark so tainted the jury as to rebut the jury's presumption of innocence, especially considering that the remark was not responsive to the question asked and in the nature of a question. The trial court did not abuse its discretion by denying Harrison's motion for a mistrial on this ground.
V. Prosecutorial misconduct
Harrison alleges that the prosecution committed misconduct in its closing argument. The portion of the closing argument at issue is as follows:
So what does this case all boil down to? I told you in opening, it's not unlike many cases. There are always competing stories, versions of events. Here the question is: Who do you believe? Simple as that. Do you believe Patricia Phillips? Or do you believe the defense case? Do you believe Randella Phillips? Do you believe Tara Yardly?
RP (April 18, 2001) at 313. We analyze this issue in two contexts: (1) whether Harrison's failure to object to the remark precludes our review of the appeal and, if not, (2) whether the statement itself is so flagrant as to deprive Harrison of a fair trial.
A. Whether the Statement is Prosecutorial Misconduct
Harrison claims that the prosecutor's statement about believing either Phillips's mother or Phillips was prosecutorial misconduct. We review allegations of prosecutorial misconduct under an abuse of discretion standard. State v. Brett, 126 Wn.2d 136, 174, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). To satisfy this standard, the defendant must prove that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. State v. Rivers, 96 Wn. App. 672, 675, 981 P.2d 16 (1999) (citations omitted). In a closing argument, a prosecuting attorney has wide latitude in drawing and expressing reasonable inferences from the evidence. State v. Harvey, 34 Wn. App. 737, 739, 664 P.2d 1281, review denied, 100 Wn.2d 1008 (1983). Otherwise improper remarks are not grounds for reversal where they are invited or provoked unless they go beyond the scope of an appropriate response. State v. La Porte, 58 Wn.2d 816, 822, 365 P.2d 24 (1961).
Harrison relies on State v. Fleming, 83 Wn. App. 209, 921 P.2d 1076 (1996), review denied, 131 Wn.2d 1018 (1997), to support his proposition that the prosecutor's comment constituted misconduct. In Fleming, we reiterated the well-settled principle that prosecutorial misconduct occurs when a prosecutor argues that the jury can acquit only if the State's witnesses are lying or mistaken. 83 Wn. App. at 213 (citations omitted). Harrison argues that the prosecutor's argument in this case was similar to the prosecutor's closing argument in Fleming because it required that the jury must determine whether the State's witness or the defendant's witness is lying.
But in Fleming, the prosecutor misstated the law by telling the jury that in order to acquit, the jury must find that the State's witnesses are lying or mistaken. 83 Wn. App. at 213. The prosecutor's argument at issue here was directed to determining the credibility of the witnesses, a prime function of the jury. Here, the prosecutor merely pointed out that the testimonies of Phillips's mother and Phillips are irreconcilable. But he did not suggest that the jury must find one witness is lying in order to acquit.
A prosecutor's closing argument may include inferences from the evidence, including inferences as to why the jury should believe one witness over the other. State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996). In this case, the prosecutor used his statement to assess the credibility of Phillips, repeating her testimony to show that she did not remember significant details of an accident that allegedly occurred in January 2001. The prosecutor did not state that to acquit the jury must believe Phillips's mother is lying, nor did the prosecutor express his personal opinion of Phillips's testimony. The focus of the prosecutor's closing argument was on witness credibility, and not unduly prejudicial.
B. Harrison's Failure to Object
Harrison did not object to the prosecution's statements in closing argument. Failure to object to an improper remark constitutes a waiver of error unless the remark is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). A remark that is likely improper may still not cause reversal of a conviction if it does not result in severe prejudice that could not be neutralized by an admonition to the jury. See State v. Wheless, 103 Wn. App. 749, 758, 14 P.3d 184 (2000). Evaluating the remark's prejudicial effect by this standard, it is clear that a proper instruction to the jury would have neutralized any prejudice caused by the prosecutor's remarks. See Russell, 125 Wn.2d at 88. Harrison's failure to request such an instruction belies his claim that the remark was flagrant and ill intentioned. Russell, 125 Wn.2d at 89. Moreover, even an egregious remark does not warrant a mistrial unless there is deliberate appeal to the jury's passion and prejudice or the remark raises fear and revulsion in the jury. Russell, 125 Wn.2d at 89. As noted above, the prosecutor was arguing legitimate inferences from Phillips's testimony. The comment was not designed to inflame the passions of the jury and was not unduly prejudicial. Therefore, Harrison's failure to object and provide the court with the opportunity to give the jury a curative instruction precludes him from benefiting from this issue on appeal.
VI. Cumulative Error
Harrison argues that even if the errors of the trial court are themselves nonreversible, the errors taken collectively require reversal of the conviction. Under the cumulative error doctrine, accumulation of nonreversible errors may combine to deny the defendant a fair trial. State v. Perrett, 86 Wn. App. 312, 322, 936 P.2d 426, review denied, 133 Wn.2d 1019 (1997). Harrison points to the errors asserted above and claims that they combined to enhance the prejudice against Harrison. But the cases cited by the Perrett court, as well as the defendant, had several errors which independently did not require reversal, but combined to deny a fair trial to the defendants. Because Harrison has failed to show error, the cumulative error doctrine does not apply. State v. Stevens, 58 Wn. App. 478, 498, 794 P.2d 38, review denied, 115 Wn.2d 1025 (1990) (Where no prejudicial error is shown to have occurred, cumulative error did not deprive the defendant of a fair trial.). As noted above, the only errors were inadvertent remarks by Phillips's mother and Yardly. While the challenged remarks were improper, the trial court promptly struck them and instructed the jury to disregard the inadvertent statements. From our review of the record, it does not appear that there is an accumulation of error that warrants a new trial.
VII. Same Course of Conduct
Harrison claims that the trial court erred by considering the two acts of assault on November 10, 2000 (ramming with the car and threat to kill), as two separate crimes for the purpose of calculating his offender score. The standards for determining whether more than one offense constitutes the same criminal conduct are outlined in statute. RCW 9.94A.589. Two or more offenses are the same crime, if the defendant (1) possesses the same criminal intent; (2) commits the crimes at the same time or place; and (3) the crimes involve the same victim. RCW 9.94A.589(1)(a). The absence of any of the above elements prevents a finding of "same criminal conduct." State v. Vike, 125 Wn.2d 407, 410, 885 P.2d 824 (1994). The trial court's calculation of the offender score is an implicit determination as to whether certain offenses constitute the "same criminal conduct" and should not be disturbed unless there was an abuse of discretion. State v. Channon, 105 Wn. App. 869, 877, 20 P.3d 476, review denied, 144 Wn.2d 1017 (2001).
Formerly 9.94A.400 (1999). See Laws of 2001, ch. 10, § 6.
It is not disputed that Phillips was the victim in both assaults. We determine whether the same criminal intent exists by viewing the crimes objectively as they were committed, not on the subjective intent of Harrison. State v. Hernandez, 95 Wn. App. 480, 484, 976 P.2d 165 (1999). If the intent required by the charges differs, then the offenses will be considered separate crimes. Hernandez, 95 Wn. App. at 484. If not, after objectively viewing the facts, then the offenses will be considered the same crime. Hernandez, 95 Wn. App. at 484. In this case, Harrison was charged with two counts of second degree assault for both assaults with both charges resulting in conviction.
That [Harrison] . . . did unlawfully and feloniously, under circumstances not amounting to assault in the first degree, assault [Phillips] with a deadly weapon, to-wit: an automobile. . .
. . . . .
That [Harrison] . . . did unlawfully and feloniously, under circumstances not amounting to assault in the first degree, assault [Phillips] with a deadly weapon, to-wit: a handgun.
Clerk's Papers (CP) (No. 27484-1-II) at 1.
We next determine whether the crimes were committed at the same time or place. Phillips's mother's testimony was that Harrison committed the assaults outside the house occupied by Phillips and Harrison, but the first occurred while Harrison was in his car; the second a short time later when Harrison entered Phillips's car without her permission. The assaults occurred in sequence separated by enough time for Harrison to choose to leave his car and enter Phillips's and threaten to kill her rather than driving away.
Courts have found that the "same time" requirement does not require that the crimes be committed literally at the same time. Channon, 105 Wn. App. at 877 n. 6, State v. Porter, 133 Wn.2d 177, 183, 942 P.2d 974 (1997). The court has recognized a "clear category" of cases where the "same criminal conduct" is when the same crime is committed against the same victim within a relatively short period of time. Porter, 133 Wn.2d at 181. Relying on the "furtherance test" Harrison argues that courts have considered "sequentially committed crimes" as one crime for the purpose of calculating the offender score. The furtherance test applies to two or more sequentially committed crimes and states that offenses should be considered the same crime if one of the crimes furthered the other. Porter, 133 Wn.2d at 183; Vike, 125 Wn.2d at 411. Sequentially committed crimes can be the "same criminal conduct" if the other two statutory elements are met. Porter, 133 Wn.2d at 183. Here, the assaults were committed sequentially but they fail to meet the furtherance test. The assaults are separate offenses; the first was an assault on Phillips's car with an intent to keep her from driving away; the second was a threat to shoot her made after Harrison forced his way into her car with an intent to intimidate her by expressly threatening to kill her. Harrison broke off the first assault — ramming Phillips's car with his — and then, instead of driving off or allowing her to drive off, he re-engaged and committed a second assault by forcing his way into her car and threatening her life. The trial court properly calculated the two assaults as separate crimes.
Appeal From January Assault
I. Excited Utterances
Harrison claims that the trial court erred when it admitted Phillips's statements to the police under the excited utterance exception to the hearsay rule. Under ER 802, hearsay is inadmissible unless the rules provide an exception. Phillips's statement is admissible if the statement was an excited utterance, defined as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." ER 803(a)(2). Determining whether a declarant is under the stress of an event is a highly factual determination with a preponderance of the evidence standard. State v. Ramires, 109 Wn. App. 749, 757-58, 37 P.3d 343, review denied, 146 Wn.2d 1022 (2002).
Harrison makes two arguments challenging the trial court's admission of Phillips's hearsay statement. The first is that Phillips could not have been under the stress of the event because Phillips maintains that the event never occurred. The second is that the trial court erred by admitting the statement without a pretrial hearing that included Phillips's testimony. Neither argument is persuasive.
In determining whether Phillips's statements were admissible, the trial court relied on the testimony of Bauer and Kramer, who interviewed Phillips that night. Bauer testified that Phillips appeared frightened when she arrived at her residence at 4:00 a.m. Bauer further testified to Phillips saying that she was afraid and fleeing Harrison. Kramer testified that when she was talking with Phillips at around 4:40 a.m., Phillips was visibly shaking and had a "startled, frightened look" on her face. RP (May 7, 2001) at 10. The officer also testified that Phillips appeared to be crying and that tears were in her eyes. Phillips's composure and influence of a startling event is clearly evident from the record. In addition, the police entered Phillips's home a short while later and recovered the gun and knife Phillips described. They also photographed the bathtub filled with water. These corroborated the spontaneous account Phillips made of Harrison's assault to Bauer.
Even when a witness recants her statement, the trial court may admit hearsay statements if shown to be reliable by balancing the witness's credibility with the evidence of reliability and spontaneity. State v. Briscoeray, 95 Wn. App. 167, 173, 974 P.2d 912, review denied, 139 Wn.2d 1011 (1999). Three requirements must be satisfied for a hearsay statement to qualify as an excited utterance. State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992). First, a startling event or condition must have occurred. Chapin, 118 Wn.2d at 686. Second, the statement must have been made while the declarant was under the stress of excitement caused by the event or condition. Chapin, 118 Wn.2d at 686. Third, the statement must relate to the startling event or condition. Chapin, 118 Wn.2d at 686. Phillips's statements to Bauer and Kramer satisfy these three requirements and the trial court did not abuse its discretion by admitting the statements made shortly after the events at issue. See State v. Strauss, 119 Wn.2d 401, 417, 832 P.2d 78 (1992).
Harrison's argument that Phillips had the opportunity to fabricate the story and that, by her own testimony, her statement to the police that night was fabricated is circular and unpersuasive. Once the court determined that Phillips's statements to Bauer and Kramer were admissible excited utterances, their credibility and weight was a decision for the jury. Harrison's argument that the trial court must assess Phillips's credibility before admitting evidence of an excited utterance incorrectly depends on the witness's availability. ER 803(a)(2); Chapin, 118 Wn.2d at 686. The declarant's availability is not relevant to the admissibility of an excited utterance. ER 803(a)(2); Chapin, 118 Wn.2d at 686. Phillips's testimony in a pretrial hearing as Harrison requested would have been irrelevant. Phillips claimed she did not make the statements or that the statements were what her mother told her to fabricate. The trial court properly admitted testimony from both Bauer and Kramer regarding statements Phillips made to them on January 16, 2001, and determined that they were made while she was under the influence of a disturbing event she described at the time as Harrison's assault.
Harrison argues that the trial court erred when it admitted Phillips's mother's testimony regarding the November 10, 2000 assault on Phillips after Harrison's attorney asked Phillips whether Harrison had ever "laid a violent hand on her." Br. of Appellant at 25. Harrison claims that his attorneys corrected the prejudice after asking the question by narrowing the scope to include only the incident in question. Harrison argues that the State should have limited its questioning to cross examination of Phillips or objecting to the statement at the time it was made, and not bringing a new witness to testify as to the November 10, 2000 assault. But by asking Phillips whether Harrison ever "laid a violent hand on her," the defense opened the door to evidence of prior acts of violent assault by Harrison against Phillips. Otherwise inadmissible evidence may be presented if the opposing party opens the door and the evidence is relevant to the issues at trial. State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969); State v. Stockton, 91 Wn. App. 35, 40, 955 P.2d 805 (1998). A trial court's decision to admit evidence is reviewed for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996).
The question Harrison raises is whether, once opened, a party may close the door. We do not reach this issue because Harrison's attorney twice asked Phillips if Harrison had ever raised a violent hand against her. Each time Phillips answered, saying Harrison never raised a violent hand against her. Following a sidebar conference, Harrison's attorney attempted to narrow his question and the scope of her answer by saying that when he said "raised a violent hand," he was referring only to this incident.
The trial court properly allowed the State to introduce evidence to rebut Phillips's testimony that Harrison had never raised a violent hand against her by presenting Phillips's mother's testimony to show that Harrison had been violent toward Phillips on November 10, 2000, without mentioning the conviction. The trial court did not abuse its discretion.
II. Sentencing
Harrison claims that the trial court improperly required that his sentence for the January 16 assault run consecutive to his prior assault conviction arising out of the November 10, 2000 incident. If Harrison was sentenced on each conviction on different days, the sentences would have been served concurrently unless the court ordered that they be served consecutively.
Harrison argues that this violates the proportionality goal of the Sentencing Reform Act (SRA) and cites State v. Whitaker, 112 Wn.2d 341, 771 P.2d 332 (1989), stating that the reasoning of that case supports the proposition that a current offense should not count as a prior conviction. But Whitaker addressed a revocation situation in which the defendant's subsequent conviction existed at the time of the revocation but did not exist at the time of his original sentence. 112 Wn.2d at 344-47.
Subject to subsections (1) and (2) of this section, whenever a person is sentenced for a felony that was committed while the person was not under sentence for conviction of a felony, the sentence shall run concurrently with any felony sentence which has been imposed by any court in this or another state or by a federal court subsequent to the commission of the crime being sentenced unless the court pronouncing the current sentence expressly orders that they be served consecutively.
RCW 9.94A.589(3) (emphasis added).
If Harrison was sentenced for two or more current offenses, where each is used to increase the offender score and standard range of the presumptive sentence, the sentences must be served concurrently unless the trial court finds sufficient aggravating factors to warrant imposing an exceptional sentence. RCW 9.94A.589; State v. Flake, 76 Wn. App. 174, 182, 883 P.2d 341 (1994).
RCW 9.94A.589(1)(a) states:
Except as provided in (b) or (c) of this subsection, whenever a person is to be sentenced for two or more current offenses, the sentence range for each current offense shall be determined by using all other current and prior convictions as if they were prior convictions for the purpose of the offender score: PROVIDED, That if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime. Sentences imposed under this subsection shall be served concurrently. Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535. "Same criminal conduct," as used in this subsection, means two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim. This definition applies in cases involving vehicular assault or vehicular homicide even if the victims occupied the same vehicle.
Here, four crimes were charged, two stemming from the November 10, 2000 incident and two from the January 16, 2001 incident. Harrison was convicted of second degree assault on April 19, 2001, for the November 10, 2000 incident and sentenced on June 1, 2001. The incidents were not part of the same course of conduct. Because Harrison was sentenced on different days, the trial court would have had the discretion to impose consecutive sentences. In this situation, the first conviction would be included in the offender score of the second but the second conviction would not be included in the calculation of the offender score of the first.
Harrison was also convicted of second and fourth degree assault on May 18, 2001, stemming from the January 16, 2001 incident, and sentenced on August 17, 2001. But this conviction did not affect his offender score.
Here the court treated Harrison's conviction for the January 16 assault as a prior or current conviction under RCW 9.94A.525 and used it to increase Harrison's offender score and the length of his standard range on his November 10 assault.
RCW 9.94A.525 (formerly RCW 9.94A. 360 (1999); see Laws of 2001, ch. 10, § 6) states:
(1) A prior conviction is a conviction which exists before the date of sentencing for the offense for which the offender score is being computed. Convictions entered or sentenced on the same date as the conviction for which the offender score is being computed shall be deemed "other current offenses" within the meaning of RCW 9.94A.589. . . . .
(9) If the present conviction is for a serious violent offense, count three points for prior adult and juvenile convictions for crimes in this category, two points for each prior adult and juvenile violent conviction (not already counted), one point for each prior adult nonviolent felony conviction, and 1/2 point for each prior juvenile nonviolent felony conviction.
RCW 9.94A.525 appears to allow this alternating use of these convictions. When the sentences on both occur on the same date, the sentences shall be served concurrently unless the simultaneously sentencing court expressly orders that they be served consecutively. Although Harrison's sentencings, were not held on the same date, the State argued that the sentencing trial courts retained the discretion to expressly order Harrison to serve his sentences consecutively even though the first standard sentencing range had already been enhanced by using the second in calculating the offender score. But under RCW 9.94A.589, whenever a person is sentenced for two or more current offenses, consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535. Thus, by scheduling separate sentencing dates, the exceptional sentence requirements of RCW 9.94A.535 were not triggered even though Harrison's offender score was increased by including the conviction in computing the offender score as it would have been during a simultaneous sentencing.
Formerly 9.94A.390 (1999). See Laws of 2001, ch. 10, § 6.
The State argues that a plain reading of the statute defines convictions on current but unsentenced offenses to be included as prior convictions in calculating the appellant's offender score. A "prior conviction" is defined as "a conviction which exists before the date of sentencing for the offense for which the offender score is being computed." RCW 9.94A.525(1). Current convictions are included in the computation of the offender score. RCW 9.94A.589(1)(a). But we note that including other current convictions triggers the provision precluding imposition of consecutive sentence absent a finding of aggravating circumstances supporting an exceptional sentence. Therefore, according to this reading of the statute, the court properly included Harrison's May 18, 2001 conviction in computing the offender score but, because Harrison's standard range included additional time caused by including his conviction for the January assault, it improperly ordered that the sentences be served consecutively without first finding sufficient aggravating factors warranting the imposition of an exceptional sentence.
Harrison claims he was denied effective assistance of counsel at sentencing. Because we remand for resentencing, we do not reach this issue.
We affirm Harrison's convictions, but remand cause No. 27800-6-II (January assault) for resentencing. At resentencing the trial court must order that the sentence be served concurrently with that imposed in cause No. 27484-1-II (November assault) or hold a hearing to determine whether there are sufficient aggravating factors to warrant imposition of an exceptional sentence requiring that the sentences be served consecutively.
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 pursuant to RCW 2.06.040, it is so ordered.
HUNT, C.J., and ARMSTRONG, concur.