Opinion
No. 59099-5-I.
March 3, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-01375-8, Gergory P. Canova, J., entered November 6, 2006.
Affirmed by unpublished per curiam opinion.
Alieu Jatta appeals his convictions for malicious mischief and felony violation of a no contact order, raising issues related to joinder and severance, a warrantless search, the sufficiency of the evidence, and the admission of prejudicial photographs. None of the issues entitles Jatta to relief on appeal.
Facts
On March 2, 2006, police officers responded to a report of domestic violence and a suspect armed with a knife making threats to kill. Officers contacted Diaesha Jatta, who reported that her husband, Alieu Jatta, slapped her in the face and threatened to kill himself and her. She said he had a knife and threatened to slash her tires, but she was able to drive away.
After talking to the police, Diaesha returned to the apartment she shared with Jatta and saw him coming down the stairs. Diaesha quickly drove away, but Jatta followed her. When traffic forced Diaesha to stop, Jatta exited his car, came toward Diaesha's car, and slashed her tires.
We refer to Diaesha Jatta by her first name to distinguish her from Alieu Jatta, the appellant.
Police officers arrested Jatta, and Diaesha returned to the couple's apartment. She discovered that Jatta had destroyed her clothing, as he had threatened he would. Diaesha was afraid he would come after her, too.
Jatta was charged with one count of malicious mischief in the second degree for damaging Diaesha's clothes and tires and one count of assault in the fourth degree. The court entered an order prohibiting Jatta from having contact with Diaesha.
On June 11, 2006, Kirkland police officers received a report of domestic violence at Diaesha's house. When officers went to Diaesha's house, she seemed calm. She said she had argued with her husband in Seattle, but he was not with her in Kirkland. The police officers did not see any signs of damage or injuries, and Diaesha said there was no history of domestic violence, so they decided to leave.
But as the officers walked down the front steps, they learned there was a no contact order prohibiting Diaesha's husband from contacting her. The officers became concerned because Diaesha told them there was no history of domestic violence. They decided they needed to confirm that Diaesha was okay. This time when Diaesha answered their knock, she looked panicked. The officers told Diaesha they knew about the no contact order and said they needed to check the house to be sure she was safe.
Diaesha admitted the officers. Deputy Matthew Volpe noticed a bedroom door closing. He went to the bedroom, looked inside, and saw a closet door closing. Deputy Volpe ordered the person who closed the door to come out, but the person did not respond. The deputy drew his gun. Eventually, Jatta came out.
Jatta was arrested and charged with one count of domestic violence felony violation of a no contact order and a charge of felony harassment-domestic violence. The State moved to join the charges that arose in March with those that arose in June. The court considered each factor of the test for joinder and granted the State's motion. The information was amended to charge Jatta with second degree malicious mischief, fourth degree assault, felony violation of a no contact order, and felony harassment. Later, Jatta moved to sever the charges, but his motions to sever were denied.
Jatta also moved to suppress "the fruits of the search of [his] home" on June 11, including what the police officers observed when they checked on Diaesha the second time. Jatta contended the officers' warrantless entry and search were not justified. The court denied the motion, concluding first that Jatta did not have standing to object to the search, and even if he had standing, the search was justified under the emergency exception to the warrant requirement.
A jury found Jatta guilty of second degree malicious mischief and felony violation of a no contact order, but could not agree on the fourth degree assault and felony harassment charges, so the court declared a mistrial on those counts. Jatta now appeals his convictions on the other counts.
Analysis Joinder/Severance
Jatta first argues the trial court erred when it granted the State's motion to join the charges from the March and June incidents and when it denied his motions to sever those charges. The trial court did not err.
Joinder is proper "when the offenses, whether felonies or misdemeanors or both . . . [a]re of the same or similar character, even if not part of a single scheme or plan . . . or [a]re based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." CrR 4.3(a)(1), (2). Whether offenses are properly joined is a question of law subject to de novo review. State v. Bryant, 89 Wn. App. 857, 864, 950 P.2d 1004 (1998), review denied, 137 Wn.2d 1017 (1999).
Offenses, even if properly joined, may be severed when "the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense." CrR 4.4(b). "Defendants seeking severance have the burden of demonstrating that a trial involving both counts would be so manifestly prejudicial as to outweigh the concern for judicial economy." State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 2d 154 (1990). Joinder of offenses may be prejudicial to the defendant in that
"(1) he may become embarrassed or confounded in presenting separate defenses; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find."
State v. Smith, 74 Wn.2d 744, 755, 446 P.2d 571 (1968) (quoting Drew v. United States, 331 F.2d 85, 88 (D.C. Cir. 1964)), vacated in part, 408 U.S. 934, 33 L. Ed. 2d 747, 92 S. Ct. 2852 (1972), overruled on other grounds in State v. Gosby, 85 Wn.2d 758, 539 P.2d 680 (1975)).
Factors to consider that may offset any prejudice from joinder include
the strength of the state's evidence on each count, (2) the clarity of defenses to each count, (3) the court properly instructed the jury to consider the evidence of each crime, and (4) the admissibility of the evidence of the other crimes even if they had been tried separately or never charged or joined.
State v. Kinsey, 7 Wn. App. 773, 776, 502 P.2d 470 (1972), review denied, 82 Wn.2d 1002 (1973).
The offenses in this case were sufficiently connected. They involved the same victim. They were related in time. See Bryant, 89 Wn. App. at 867 (robbery and bail jumping occurring within four months were related in time). And the no contact order that Jatta was alleged to have violated in June was the no contact order entered after Jatta's acts in March.
Moreover, Jatta has not shown he was prejudiced by joinder. Jatta claims that the evidence on each of the counts against him was not uniformly strong, as was found to be prejudicial in State v. Hernandez, 58 Wn. App. 793, 794 P.2d 1327 (1990), review denied, 117 Wn.2d 1011 (1991). But Jatta's case is unlike Hernandez. Hernandez was charged with multiple counts of robbery. Eyewitnesses to some of the robberies were certain that Hernandez was the robber, and their identification of him was corroborated. Eyewitnesses to other robberies were uncertain whether Hernandez was the robber, or their identification of Hernandez was uncorroborated. Under those circumstances, joining weak charges with strong ones was prejudicial. Hernandez, 58 Wn. App. at 800.
In contrast, there was no question of identity in Jatta's case. Moreover, although some of the charges against Jatta were stronger than others, the difference in the strength of the charges is not significant in relation to joinder because both the March and June incidents resulted in one strong charge and one weaker charge.
Neither was Jatta prejudiced by unclear or conflicting defenses. His defense to each charge essentially was a general denial. The trial was short and uncomplicated. As is apparent from the jury finding Jatta guilty of only two of the charges, the jury could compartmentalize the evidence on the various counts. Also, the judge properly instructed the jury to consider each count separately.
Finally, although not all of the evidence of each crime would have been admissible in a trial on the other crimes if the charges had not been joined, much of the evidence in one case would have been admissible in the other. For example, evidence showing the history of domestic violence from March explained why Diaesha lied and told police officers in June that Jatta was not with her in the apartment. See State v. Grant, 83 Wn. App. 98, 107-08, 920 P.2d 609 (1996) (defendant's history of domestic violence admissible when victim's credibility was central issue at trial).
Moreover, severance is not required even if evidence of separate counts would not be cross-admissible: "The fact that separate counts would not be cross admissible in separate proceedings does not necessarily represent a sufficient ground to sever as a matter of law." State v. Kalakosky, 121 Wn.2d 525, 538, 852 P.2d 1064 (1993).
Jatta has not established that joinder or the denial of his severance motions was improper or prejudicial.
Warrantless Search
Jatta argues that the police unlawfully entered his home without a warrant and, therefore, all the evidence obtained as a result of that entry must be suppressed. The trial court held that Jatta did not have standing to challenge the officers' entry, and even if he had standing, the officers' entry was justified by the emergency exception to the warrant requirement. We need not address standing because the entry was justified by the emergency doctrine.
Ordinarily, the police must have a warrant to enter and search a private building, but in some circumstances there are exceptions. State v. Leupp, 93 Wn. App. 324, 330, 980 P.2d 2d 765 (1999), review denied, 139 Wn.2d 1018 (2000); State v. Gocken, 71 Wn. App. 267, 857 P.2d 1074 (1993), review denied, 123 Wn.2d 1024 (1994). For example, a warrantless search may be justified in an emergency. State v. Lynd, 54 Wn. App. 18, 20, 771 P.2d 770 (1989). To come within the emergency exception, "the State must show that: (1) the searching officer subjectively believed an emergency existed; and (2) a reasonable person in the same circumstances would have thought an emergency existed." Lynd, 54 Wn. App. at 21. There also must be a reasonable basis to associate the place searched with the emergency. Lynd, 54 Wn. App. at 21.
The State satisfied its burden in this case. Although the officers did not see signs of a struggle or injury when they first spoke with Diaesha, they quickly realized she had not been truthful. She denied there was any domestic violence history and said only she and her children were home, but officers learned there was a no contact order and there were two cars in the driveway. And when Diaesha answered the door the second time, she seemed panicked.
Jatta suggests that the officers entered to look for evidence of a crime — his violation of the no contact order. But the officers' testimony supports a finding that they searched the residence to ensure that Diaesha was safe. Although the officers acknowledged they thought they might find someone violating a no contact order, their search was not a pretext for investigating a crime. Rather, their knowledge that Jatta might be violating the no contact order reasonably made the officers concerned for Diaesha's safety. The warrantless search was justified under the circumstances.
Proof of No Contact Order Violation
Jatta next contends that the evidence was insufficient to prove all the elements of violation of a no contact order beyond a reasonable doubt.
Evidence is sufficient if, when viewed in the light most favorable to the State, any reasonable trier of fact could find guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). When a criminal defendant challenges the sufficiency of the evidence, he admits the truth of the State's evidence, and all reasonable inferences therefrom are drawn in favor of the State. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004).
To prove violation of a no contact order the States must prove that the defendant knows that the order exists. See RCW 26.50.110(1). Jatta argues there was insufficient evidence to prove he knew about the no contact order. But drawing all reasonable inferences from the evidence in the State's favor, the evidence was sufficient to prove that Jatta knew about the order. A King County Sheriff's detective testified that no contact orders are issued to defendants when they are in court. Moreover, the actual no contact order, which had the space for the defendant's signature filled in, was admitted into evidence. This evidence is sufficient to prove that Jatta had knowledge of the order.
Prejudicial Photos
Jatta contends that the trial court abused its discretion when it admitted photographs of him in bed with women other than Diaesha. He argues the pictures were more prejudicial than probative. We disagree.
To be admissible, evidence must be relevant. ER 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence." ER 401. Even if evidence is relevant, however, it "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." ER 403. The decision whether to admit evidence is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion, which occurs when no reasonable person would take the view adopted by the trial court. State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001).
Initially, the trial court agreed to admit a couple of photographs of Jatta in bed with other women. Later, however, the court admitted a proof sheet showing multiple photographs of Jatta with other women. The torn proof sheet was found in Diaesha's apartment after the incident in March. Diaesha explained that the confrontation with Jatta began because she told him she intended to show the photographs to the husband of one of the women in the photographs. The photographs bolstered Diaesha's credibility.
Jatta contends that the photographs were unfairly prejudicial and cumulative, particularly when the trial court ruled that defense counsel could not question Diaesha about threats she made to one of the women in the photographs. Jatta, however, does not assign error to the trial court's limitation on cross-examination.
The photographs were relevant, and Jatta has not shown that he was unfairly prejudiced by them. The trial court did not abuse its discretion in admitting them.
Conclusion
None of the errors that Jatta alleges entitle him to relief. His convictions for malicious mischief and felony violation of a no contact order are affirmed.
For the Court: