Opinion
No. 66731-9-I.
Filed: April 18, 2011.
Appeal from a judgment of the Superior Court for Clark County, No. 09-1-00189-8, Robert L. Harris, J., entered November 3, 2009.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Cox, J., concurred in by Dwyer, C.J., and Grosse, J.
Hamzai Rudolph challenges his convictions for second degree assault and tampering with a witness. He argues that the trial court prejudicially commented on the evidence when it answered "no evidence" to a jury question, where the jury could have inferred facts from a witness's testimony. He also contests the domestic violence designation imposed by the court on both convictions as improper under the statutory scheme at issue. We conclude that the trial court's answer to the jury question was a comment on the evidence. But it was harmless beyond a reasonable doubt. We accept the State's concession that the domestic violence finding was improper and remand for resentencing on that issue. We affirm in part, vacate in part, and remand.
Rudolph was charged with one count of second degree assault and one count of witness tampering, both involving his then girlfriend A.C. A.C. was 15 years old and Rudolph was 17 years old when the crimes were committed.
A.C. and Rudolph dated for about two and a half years. On the evening of November 14, 2008, A.C.'s jaw was broken while she was at a party with Rudolph. She gave conflicting stories about how the injury occurred. Initially, she reported that she had been beaten up by some girls. But she later recanted, and reported to her family, medical professionals, and the police that she had been punched in the jaw by Rudolph. At trial, A.C. testified that on the night the incident happened, Rudolph urged her to tell everyone that she had been beaten up by some girls so that he would not get in trouble. She also testified that he continued to encourage her to tell the made-up story after her injury was repaired and after she reported the truth to the police.
At trial, Rudolph's younger sister, L.W., testified that she had punched A.C. in the jaw on the night the injury occurred. However, the credibility of her testimony was called into question by a police officer who was present at the State's interview with L.W. a week before trial. He testified that there were several major differences between her story during the interview and her testimony at trial. For example, during the interview she testified that she hit A.C. with a short, quick jab, but at trial she showed the prosecutor that she hit A.C. with a long, hard swing. In addition, at the interview, she testified that she fell asleep at the home where the fight occurred, while at trial she testified that she left the house immediately after she punched A.C.
Rudolph's cousin and his girlfriend also testified that L.W. punched A.C. However, their stories were inconsistent as to the details of the alleged altercation between A.C. and L.W.
During jury deliberations, the jury sent the court a written question and the court responded "No evidence."
The jury convicted Rudolph as charged and returned a special verdict that Rudolph and A.C. were "family or household members," supporting the imposition of a domestic violence finding by the court. The court imposed a standard range sentence that included sentencing conditions specific to the domestic violence finding.
Rudolph appeals.
COMMENT ON THE EVIDENCE
Rudolph argues that the trial court's response to the jury question was a prejudicial comment on the evidence because the jury could have inferred the answer from the evidence introduced at trial. We agree, but conclude that this error is harmless beyond a reasonable doubt.
Rudolph did not timely object to the court's answer to the jury question at trial. However, because judicial comments on the evidence are explicitly prohibited by the Washington Constitution, a party asserting that an instruction impermissibly comments on the evidence raises an issue involving a manifest constitutional error that this court may consider on appeal even through it was not raised below.
State v. Levy, 156 Wn.2d 709, 719-20, 132 P.3d 1076 (2006).
Under article IV, section 16 of our constitution, a judge is prohibited from conveying to the jury his personal opinion about the merits of the case or from instructing the jury that a fact at issue has been established. The purpose of this provision is to prevent the jury from being influenced by knowledge conveyed to it by the court as to the court's opinion of the evidence submitted. To constitute a comment on the evidence, the court's attitude toward the merits of the cause must be reasonably inferable from the nature or manner of the court's statements. We look to the case facts and circumstances to see if an improper comment has been made.
Id. at 721.
State v. Elmore, 139 Wn.2d 250, 275, 985 P.2d 289 (1999).
Id. at 276; see also State v. Ciskie, 110 Wn.2d 263, 283, 751 P.2d 1165 (1988) (an indication to the jury of the judge's personal attitudes toward the merits of the case is an impermissible comment on the evidence).
State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970).
Impermissible judicial comments on the evidence are presumed to be prejudicial. Reversal is required unless the State shows that the defendant was not prejudiced or the record affirmatively shows that no prejudice could have resulted.
Levy, 156 Wn.2d at 723.
Id. at 725.
Here, during deliberations, the jury submitted the following question to the court: "Do we know the dominant hand [Rudolph] is, left or right? Is [L.W.] left or right?" The court answered: "No evidence."
Rudolph argues on appeal that the court's answer to the jury inquiry constitutes a comment on the evidence because the jury could have inferred which hand was dominant for L.W. based on her demonstration of how she hit A.C. during her testimony. He suggests that she would have struck A.C. with her dominant hand and that she would have demonstrated how she hit A.C. with her dominant hand. He argues that the trial court's answer that there was "no evidence" on the issue was therefore incorrect, and also a comment on the credibility of L.W.'s trial testimony. We agree. Because the court's response instructed the jury that an issue of fact was established as a matter of law, the court's answer to the jury question is a comment on the evidence.
See State v. Jackman, 156 Wn.2d 736, 743-44, 132 P.3d 136 (2006) (concluding jury instruction which stated fact that was in dispute constitutes a judicial comment on the evidence).
Next, we must determine whether the error was prejudicial. Rudolph argues that the comment was prejudicial because whether L.W. was right or left-handed goes to whether she broke A.C.'s jaw. It also goes to whether Rudolph tampered with witness A.C. by encouraging her to tell a lie about how her jaw was broken. He further argues that the court's comment "damaged [L.W.'s] testimony beyond repair." We disagree.
A.C. testified that she was hit on the left side of her jaw. Rudolph argues that the person who hit her was therefore probably right-handed. He reasons that if the evidence showed that L.W. was right-handed, this would support his defense that his little sister was the actual perpetrator of the assault.
We reject Rudolph's contention that the court's answer prejudicially undermined L.W.'s credibility. As discussed above, there were significant issues with L.W.'s credibility, irrespective of the trial court's answer to the jury question. There were several discrepancies between L.W.'s story at trial and the story she told during her interview with the State the week before trial. These discrepancies were pointed out to the jury by a police officer that was present during that interview. Any additional impact on L.W.'s credibility resulting from the court's answer was relatively small in comparison and did not result in prejudice.
In addition, a careful review of the record shows that defense counsel did not make any argument related to which hand was dominant for either Rudolph or L.W. Consequently, there is nothing in the record from which this court could infer that the jury would have reached a different conclusion if it had determined that L.W. was right-handed or left-handed.
Rudolph argues that City of Seattle v. Arensmeyer supports his contention that the court's comment was prejudicial. There, the issue at trial was whether or not appellant had hindered a police officer in the course of his duty. One of the appellant's defense strategies was to show that the police hit and beat the demonstrators, including the appellant, without provocation. During closing, defense counsel argued that several of the police officers involved were very inexperienced. During this argument, the trial judge interrupted counsel and corrected him with the court's interpretation of the facts.
6 Wn. App. 116, 491 P.2d 1305 (1971).
Id. at 118.
Id.
Id. at 120.
Id.
Arensmeyer appealed, arguing that the court's remark was an inappropriate comment on the evidence and the court of appeals reversed, concluding that "the court cannot compel counsel to reason logically or draw only those inferences from the given facts which the court believes to be logical."
Id. at 121.
The facts of this case are distinguishable from Arensmeyer. There, defense counsel's theory of the case was that the police officers were inexperienced and did not respond appropriately to the protestors. And the court's comments directly addressed evidence relevant to that issue. Here, on the other hand, there is no evidence to support Rudolph's argument that whether L.W. was right or left-handed was relevant to his defense or argued to the jury. Thus, as described above, the court's comment on that fact was not prejudicial.
In sum, we conclude that it affirmatively appears from the record that Rudolph could not have been prejudiced by the trial court's answer to the jury inquiry.
DOMESTIC VIOLENCE FINDING
The State concedes that the trial court erred in finding that both Rudolph's convictions were domestic violence offenses. We accept this concession and remand for resentencing in light of this conclusion.
For a crime to qualify as a domestic violence offense, it must be committed by one family or household member against another family or household member. "Family or household member" means:
spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship , and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.
RCW 10.99.020(3) (emphasis added).
Here, the record clearly demonstrates and the parties agree that A.C. was only 15 at the time the offenses were committed. Thus, she does not qualify as a "family or household member" under the statute. The trial court's finding that Rudolph's convictions were domestic violence offenses is therefore erroneous.
We affirm the conviction, vacate the domestic violence finding, and remand for resentencing.
WE CONCUR.