Opinion
No. 35187-1-II.
October 9, 2007.
Appeal from a judgment of the Superior Court for Kitsap County, No. 05-1-01128-7, Theodore F. Spearman, J., entered August 2, 2006.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Houghton, C.J., and Bridgewater, J.
Matthew K. Stone appeals his conviction for second degree assault while armed with a deadly weapon, claiming the trial court erred in allowing inadmissible character evidence and improperly limiting his ability to cross examine a prosecution witness. Finding no such errors in the trial court's rulings, we affirm.
A violation of RCW 9A.36.021(1)(a) and/or (c), and RCW 9.94A.602.
Facts
On February 26, 2005, Joseph Bollinger went with his friend Benjamin Ellers to the Horse and Cow Bar in Kitsap County. He had had three or four beers earlier that day and arrived at the Horse and Cow between 10:00 and 11:00 p.m. where he consumed one or two more glasses of beer. When the bar announced it was last call for drinks, Bollinger stepped outside the front door and waited for Ellers. While standing there, he saw someone yelling and walking toward him with Page 2 his hands up, and Bollinger turned to see if the yells were directed at someone behind him. When Bollinger turned back, he realized that the man was coming after him, put his arm up to stop a blow, and was struck in the face. Bollinger pushed the man to the ground before bar security pulled him away. The other man, later identified as Stone, walked away quickly, got in his car, and left.
Bollinger claimed that the attacker struck him with brass knuckles, said that he had seen the man in the bar earlier but did not know him, and claimed that he and the man had no conversation or threats before the man struck him. A subsequent CAT scan revealed that Bollinger suffered a zygoma fracture.
Kitsap County Sheriff's Deputy Schon Montague took a report from Bollinger and noticed that Bollinger had a two-inch long, one-and-one-half inch wide mark on his face. Deputy Montague later testified that he had investigated over 100 assaults and that Bollinger's injury was not consistent with a typical fist-to-face blow.
Jason Peebles, an off-duty security guard at the Horse and Cow, was in the bar before the assault and had been observing Stone. He said that Stone was not wearing jewelry other than a necklace and that he became wary of Stone when he saw him move a metal object, which to Peebles appeared to be brass knuckles, from one pocket to another. He described the movement as "[q]uick and concealed." 3 Report of Proceedings (RP) at 152. Peebles was concerned about Stone and informed the other security guards that Stone might be armed. Peebles followed Stone into the restroom and said that Stone "kept fiddling with his pockets." 3 RP at 147. Peebles left the restroom shortly after Stone. He did not see Stone in the bar but heard a commotion outside where he found Bollinger, observed his injury, and told Bollinger to go to the hospital.
George DeLaTorre, another security Page 3 guard at the Horse and Cow, testified to seeing Stone and Bollinger having an argument outside. He said he looked back into the bar for a minute and when he turned back, the two were at each other. He did not see who threw the first punch and he did not see a weapon.
Heather McEntee, who was friends with Stone, testified that she went to the Horse and Cow that night with several friends. She testified that when she left the bar, a group of men were standing outside, using profanity, and trying to start a fight with her friends. She also testified that she and Stone worked together and the next day she saw that he had a serious injury to his knee and could barely walk.
Stone testified that he went to the Horse and Cow with a friend, that he did not drink any alcohol while there, and that he left about 2:00 a.m. Because his truck was blocked in, he could not leave and, as he was returning to the building, he saw McEntee with her friends having an encounter with two men, one of whom was Bollinger. Stone explained that he told his friends to go home and told Bollinger and the other man to grow up. As he went around the building toward the entrance, Stone testified that Bollinger was there waiting and made a comment to him about fighting. Stone asked Bollinger if he was talking to him and Bollinger responded, "You're the one that's going to kick my ass?" 3 RP at 211. He testified that Bollinger took a fake swing at him and then a real swing but he stepped back and Bollinger missed him. Stone then admitted that he swung and hit Bollinger in the face. Stone said that he hurt his knee when a security guard jumped on him and that he could barely walk. Stone said he did not run away but that a security guard told him to go home. He denied having either brass knuckles or any other weapon, explaining that he was carrying a black cell phone in his pocket.
During the State's rebuttal, Peebles testified that he watched Stone sit down next to a woman in the bar when her male friend got up.
He said the woman asked Stone to leave but he did not and when the man returned, he told Stone to get out of his chair. He said Stone then stood up and, for the next 6-8 minutes, gave the man an aggressive look while rubbing his knuckles and passing the brass knuckles from pocket to pocket. He referred to Stone as "mad dogging" the man and he said that what he observed was not a cell phone but a weapon. 3 RP at 241.
Rejecting Stone's lawful use of force defense, the jury found him guilty of second degree assault and, by special verdict, that he was armed with a deadly weapon when he committed the offense.
Analysis
I. ER 404(b).
Stone first argues that the trial court abused its discretion in allowing Peebles to give rebuttal testimony about the unrelated incident in the bar between him and the unidentified man. He claims that this evidence was irrelevant, unrelated, prejudicial character evidence.
Evidence of other crimes, wrongs, or acts is inadmissible to prove a defendant's character or to demonstrate that the charged action conformed with the defendant's character. ER 404(b). The same evidence may be admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ER 404(b).
To admit evidence under an exception to ER 404(b), "the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value of the evidence against its prejudicial effect." State v. Pirtle, 127 Wn.2d 628, 648-49, 904 P.2d 245 (1995). We review a trial court's decision to admit evidence under ER 404(b) for an abuse of discretion. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). A trial court abuses its discretion when it bases its decision on untenable grounds or reasons. State v. Soper, 135 Wn. App. 89, 96, 143 P.3d 335 (2006).
Under the res gestae rule, evidence of other crimes or misconduct is admissible to complete the story of the crime by establishing the immediate time and place of its occurrence. Where another offense constitutes a "link in the chain" of an unbroken sequence of events surrounding the charged offense, evidence of that offense is admissible "in order that a complete picture be depicted for the jury." State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997) (quoting State v. Tharp, 96 Wn.2d 591, 594, 637 P.2d 961 (1981)).
The trial court initially excluded Peebles's testimony about Stone's confrontation and aggressive behavior in the bar. The court noted that (1) it was uncontested that the act occurred, (2) the only purpose of the evidence was to show demeanor, mood, or aggressiveness 15 minutes before the assault occurred, (3) the evidence was only marginally relevant (two to three on a scale of ten), and (4) it was not an inseparable part of the assault. The court then stated:
Though the trial court did not note this, Peebles's testimony was clearly admissible to contradict Stone's denial that he had brass knuckles.
Now, it may be that it was an inseparable part, alleged, of how his mood was that night or what was occurring in his demeanor that night that led up to it, and that's an argument that will be allowed if he is going to bring into evidence, through the defendant's testimony, that someone else was the aggressor or that the victim here was the aggressor, or if self-defense is going to be used, then I think it becomes relevant under the complete story of what was going on in the bar that night.
2 RP at 35. In his opening statement, Stone explained that he was asserting self-defense. The court then found that the evidence was admissible but limited it as rebuttal testimony.
We find no abuse of discretion here. Evidence of this earlier confrontation contradicted Stone's self-defense claim as it showed that he had a continuing course of provocative behavior. See State v. Thompson, 47 Wn. App. 1, 733 P.2d 584 (1987); and State v. Turner, 29 Wn. App. 282, 290, 627 P.2d 1324 (1981).
In Thompson, the court admitted testimony that in the hour before the shooting, Thompson had twice brandished a weapon and was heard yelling, "I'm going to kill the bastard." 47 Wn. App. at 4. Thompson argued on appeal that these incidents were inadmissible character evidence and did not show identity, motive, or intent. Division One disagreed, reasoning that the testimony was relevant "because it tends to contradict Thompson's testimony that his acts of shooting were in self-defense, because it showed a continuing course of provocative conduct during the course of an evening." 47 Wn. App. at 11. The court also agreed that the testimony was admissible under the res gestae exception because it took place between Thompson's first encounter with the victims and the shootings. 47 Wn. App. at 12.
In Turner, we upheld the admission of a prior rifle-pointing incident that had occurred 5 or 6 months earlier. While acknowledging that this evidence could show propensity as the current offenses involved second degree assaults by firing a rifle into passing vehicles, we found the prior incident relevant to Turner's motivation. 29 Wn. App. at 289-90.
Stone testified that he sat quietly in the bar, left when the bar was closing, and when leaving, saw Bollinger and another man trying to start a fight with McEntee and her friends. This is quite a different picture than Peebles described. Stone's behavior so concerned Peebles that he contacted the other security guards to warn them because of Stone's aggressiveness and possession of a weapon. Under these circumstances, it was not an abuse of discretion to allow this evidence as it contradicted Stone's testimony and showed a continuing course of provocative conduct. See also State v. Lane, 125 Wn.2d 825, 889 P.2d 929 (1995) (evidence about 2-or 3-day crime spree before and after kidnapping and murder admissible as res gestae).
This is not a case "where the minute peg of relevancy [was] entirely obscured by the dirty linen hung upon it." State v. Goebel, 36 Wn.2d 367, 379, 218 P.2d 300 (1950) (paraphrasing Stone, The Rule of Exclusion of Similar Fact Evidence: England, 46 Harv. L.Rev. 954, 983 (1933)). The trial court did not abuse its discretion.
II. Right of Confrontation
Stone next argues that he was denied his right to confront Bollinger because the trial court excluded evidence that he included medical expenses from an unrelated injury on his victim impact statement. He argues that this evidence, along with evidence that Bollinger did not have medical insurance, showed that Bollinger had a financial motive for accusing him so that his medical expenses would be paid.
The Sixth Amendment's confrontation clause requires that an accused be permitted to cross-examine a witness for bias. The rules of evidence do also. Bias can arise from a variety of circumstances, including civil proceedings between the victim and the defendant. Bias includes that which exists at the time of trial, for the very purpose of impeachment is to provide information that the jury can use, during deliberations, to test the witness' accuracy while the witness was testifying.
State v. Dolan, 118 Wn. App. 323, 327-28, 73 P.3d 1011 (2003)
(footnotes and citations omitted).
During his offer of proof, Stone asked Bollinger why there were two different bills attached to his victim impact statement. Bollinger explained that one was for an initial visit and the other was for a follow-up exam to check for nerve damage. Stone then asked if the second bill was for a second fight that Bollinger had been in. Bollinger replied, "Uhm, I don't think so. Huh-uh. I don't know." 2 RP at 79. Stone made no further offer of proof and the trial court refused to allow him to cross-examine Bollinger on this issue "unless there's something new you can come up with. I will give you the opportunity in the morning if you want to ask any more questions about it." 2 RP at 80. Stone told the court that he had copies of the medical reports from the second assault but he never sought to introduce them or show that they were related to the claimed expenses in the victim impact statement. The court told Stone that he needed to produce evidence to substantiate these claims. Stone never did.
Stone now claims that this ruling violated his confrontation rights. We disagree. Stone never substantiated his claim that Bollinger submitted unrelated medical bills so that he could be reimbursed. The trial court did not abuse its discretion in limiting Stone's cross-examination when his claims were speculative. See State v. Benn, 120 Wn.2d 631, 651, 845 P.2d 289 (1993) (court can limit cross-examination if questions are based on speculative or remote claims); State v. Campbell, 103 Wn.2d 1, 20, 691 P.2d 929 (1984) (we review for abuse of discretion).
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C.J., and BRIDGEWATER, J., concur.