State Of Washington, Respondent V Sylvio Albert Bravetti, Appellant (Majority)
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FILED L 14' lal': 2014 I IN THE COURT OF APPEALS OF THE STATE OF WASHING 8 API g: 54 nnT, r DIVISION II DE No. 43692 -2 -II STATE OF WASHINGTON, Respondent, V. UNPUBLISHED OPINION SYLVIO ALBERT BRAVETTI, ant. PENOYAR, J. domestic court violence) erred when it Sylvio Bravetti appeals his conviction for second degree assault for pointing excluded a gun at evidence his adult son of Michael' s' Michael Bravetti. He argues that the trial violent acts because the evidence was necessary to establish Sylvio' s state of mind at the time of the assault. Sylvio also argues that his counsel was ineffective because counsel failed to object and to introduce evidence. We hold that the trial court properly excluded evidence of Michael' s violent acts that were not directed at Sylvio and that took place when Michael was a child or teenager because this evidence was largely irrelevant and any probative value was outweighed by unfair prejudice. Additionally, counsel was not ineffective because the failure to object was a trial strategy and the failure to offer evidence did not affect the trial' s outcome. We affirm. FACTS On October 3, 2011, Michael and Michael' s six year -old son were living with Sylvio and Sylvio' s wife, Kathy Bravetti. That morning, Michael was having trouble getting his son ready The defendant, the victim, and many of the witnesses share the same last name. For clarity, we refer to them by their first names. I` 43692 -2 -II for His son was crying and refusing to get dressed, so Michael yelled at and spanked school. him. Sylvio and Kathy overheard the interaction became and concerned. After Michael left, Sylvio called Michael' s mother, Ruth Bravetti, and told her he was considering calling Child Protective Services ( CPS) about Michael' s treatment of his son. When Michael arrived at Ruth' s later that morning, Ruth told him that Sylvio was concerned and was considering calling CPS. Michael testified that he was upset that Sylvio would call CPS because Sylvio had hit Michael when he was a child. Ruth testified that Michael said he was going to " beat his father' s face to a pulp, him bleed, going to kill him." 2 Report make of Proceedings ( RP) at 239. Michael denied making any threats against Sylvio. After Michael left, Ruth called Sylvio to warn him that Michael was upset and that he had threatened to hurt Sylvio. it and placed under a folder Based on Ruth' s warning, Sylvio retrieved a gun from his desk on the kitchen table. He also called Ruth back and asked her to listen on the line while he talked to Michael. Sylvio was sitting in the kitchen when Michael returned. Michael and Sylvio agree that a confrontation occurred, but they disagree as to what happened during the confrontation. Michael testified that he and Sylvio talked about Michael' s treatment of his son, then Michael stepped closer to Sylvio, tapped his chin, and asked him to admit that he had hit Michael when Michael was young. gun barrel Sylvio then and pulled out a gun and pointed the two of them wrestled over the it in Michael' gun, s face. Michael grabbed the eventually ending up on the floor. After they fell to the floor, Sylvio agreed to release the magazine and Michael put the bullets in his pocket. 2 43692 -2 -II Sylvio testified that Michael then Sylvio, slapped punched his house entered him in the and chest, and poked began yelling in his face. him. Michael Sylvio said he drew the gun at that point because he was afraid of Michael and, because of his physical condition, he could not otherwise stop Michael' Sylvio agreed that Michael grabbed the gun and that the two s assault. fought over it until Sylvio released the magazine. Both men agreed that Ruth, who was listening to the scuffle over the phone, called the police on her other line and that the police arrived at Sylvio' s shortly thereafter. State The charged alternative, second degree Sylvio assault ( first degree with domestic violence), assault ( domestic violence) or, in the both while armed with a deadly weapon. Sylvio stated that he would be raising self defense at trial. The State filed motions in limine to exclude evidence of Michael' s 2005 arrest for malicious mischief and assault ( domestic violence) and evidence of Michael' s reputation within the family. The State also moved to admit evidence that Sylvio had hit Michael with a back scratcher when Michael was a child. It argued that this evidence was necessary to explain Michael' s statements to Ruth on the morning of the assault. Sylvio filed a motion to admit evidence of his state of mind on October 3. Specifically, he wanted to introduce evidence that Michael ( 1) bit and scratched Ruth when he was a teenager, 2) assaulted defensive argued Ruth body with assaulted another posture a and during his girl younger arguments, ( Sylvio in the kitchen former with child and brother 4) invades chased him friends, ( 7) taunted Sylvio, ( baseball bat. when he was others' around a child, ( personal 3) takes a certain space, ( 5) previously the kitchen island, ( 6) allegedly 8) threatened Ruth, and ( 9) attempted to hit Sylvio also moved to admit evidence from court pleadings in Michael' s custody case and evidence of Michael' s reputation for violence. 3 43692 - -II 2 The trial court reviewed both parties' proffered evidence and concluded that, while it was not possible" to inform the jury about everything Sylvio knew about Michael, it attempted to family history in allow enough trial court Michael' 3) determined that the s posture evidence evidence Sylvio that following and used evidence this incident in put arguments, ( that Michael instruction), ( 5) within during to " context." evidence would be May 9, admissible at 2012) trial: ( 1) at 16. The evidence of 2) evidence that Michael invades others' personal space, Sylvio previously corporeal argued punishment in the kitchen against that Michael taunted Sylvio, ( 6) the community, and ( 7) RP ( specific instances that show Michael ( around the island, ( 4) subject to a limiting evidence of Michael' s reputation aspects of Michael' s character. The court reserved ruling on the admissibility of evidence that Michael attempted to hit Ruth with a baseball bat. The trial court excluded evidence of (1) Michael' s 2005 arrest because the incident did not suggest danger to Sylvio and the danger of unfair prejudice outweighed the probative value, 2) Michael' s .reputation occurrence was vague in the and family, ( 3) Michael scratching or biting Ruth because the date of the danger of unfair prejudice outweighed the probative value, ( 4) Michael' s assault of another child and his brother because this evidence was irrelevant and the danger of unfair prejudice outweighed the probative value, ( 5) Michael' s alleged assaults against former girl friends because the evidence was highly prejudicial and not the type of danger that would suggest probative, ( harm to Sylvio, ( 6) Michael' s threats against Ruth because the evidence was not 7) pleadings from Michael' s custody case because the danger of unfair prejudice outweighed the probative value. E 43 692 - -II 2 At trial, Michael testified about his relationship with Sylvio. He testified that Sylvio used to hit him and chase testimony, him through the house. The trial court gave a limiting instruction after this telling the jury that it could consider this evidence only for the purposes of understanding Michael' s comments to Ruth on October 3 and the prior physical incidents between Michael and Michael also testified that he hit Sylvio once in the garage when Sylvio. Michael was about 16. Sylvio called several witnesses to testify about Michael' s character and his interactions Ruth testified Sylvio. with Michael was Michael was " Kathy very angry beating testified that about and that up" Sylvio her she conversation felt frightened. while she she was afraid of listened Michael and Michael with on on October 3, stating that She also testified that it sounded like the that he phone on was " October 3. 2 RP at 247. very angry" and disrespectful 272. She also testified about Michael and Sylvio' s previous argument around the kitchen island. Sylvio' s son Tony testified about Michael hitting Sylvio in the Michael toward angry" both her and Sylvio. garage when and was hitting 2 RP his father at was a teenager. forcefully and that Tony testified that Michael was " extremely Tony was scared for Sylvio. 2 RP at 293. Sylvio also testified about the incident in the garage, and he attempted to introduce evidence that, after are the the garage fight, Michael sleeping." 2 RP relevance was at 294. slight said, " Just you wait. I' m going to get you with a bat while you The trial court excluded the evidence under ER 403, concluding that and the prejudice great. Sylvio additionally testified about several recent instances where Michael was verbally abusive toward him. Sylvio did not try to introduce evidence that Michael attempted to hit Ruth with a bat. E 43692 - -II 2 The trial court instructed the jury on the lawful use of force. The jury found Sylvio guilty of degree second assault ( domestic violence) while armed with a firearm. The trial court sentenced him to 42 months of confinement. Sylvio appeals. ANALYSIS STATE OF MIND EVIDENCE 1. First, Sylvio argues that the trial court erred when it excluded evidence of Michael' s past He contends that this evidence was necessary to establish his state of mind at the violent acts. time the of assault. Because the trial court reasonably excluded evidence that was irrelevant or unfairly prejudicial, we affirm. A trial 609, 30 court has discretion to 1255 ( 2001). P. 3d admit or exclude evidence. State v. Neal, 144 Wn.2d 600, We will not overturn that decision unless it is manifestly unreasonable or based on untenable grounds or reasons. Neal, 144 Wn.2d at 609 ( quoting State v. Stenson, 132 Wn.2d 668, 701, 940 P. 2d 1239 ( 1997)). A. Hearsay Sylvio first contends that the trial court erred when it excluded evidence based on the hearsay based Most of the evidence that Sylvio argues was improperly excluded was excluded rule. on relevance and unfair prejudice and not hearsay. The only evidence that the trial court excluded as hearsay was Sylvio' s testimony about what Ruth told him Michael said on the day of the assault. But, even if the trial court erred when it excluded Sylvio' s testimony, the error was harmless because this Michael said him." 2 RP he at was 239. evidence going to " was admitted through Ruth' s testimony. Ruth testified that beat his father' s face to a pulp, make him bleed, going to kill She also testified that she called Sylvio and told him what Michael had said. Sylvio testified that he received a call from Ruth and that he learned that "[ he] could probably 43692 -2 -II expect a good 333. beating," which caused him to become " fearful" the after conversation. 2 RP at Accordingly, the jury had evidence that Sylvio knew about Michael' s threat against him at the time of the assault and that the threat made him fearful. ER 402 and 403 B. Sylvio next argues that the trial court erred when it excluded evidence under ER 402 and 403. Generally, character evidence is inadmissible to prove conformity on a particular occasion. ER 404( a). But there is an exception for evidence of the victim' s character offered by the ER 404( a)( 2). accused. violent victim' s character Callahan, 87 Wn. App. In a case where the defendant asserts self defense, evidence of the may be relevant to show 925, 934, 943 P. 2d 676 ( 1997); the defendant' s state of mind. State v. State v. Dyson, 90 Wn. App. 433, 438 -39, 952 P. 2d 1097 ( 1997) ( to establish self defense, the defendant must produce evidence showing he had a good faith belief in the necessity of force and this belief was reasonable). The defendant may offer evidence of the victim' s violent acts only if the acts are not too remote and the State v. Cloud, 7 Wn. App. if the defendant has knowledge of 211, 218, 498 P. 2d 907 ( 1972) ( quoting State v. 4damo, 120 Wash. 268, 269, 207 P. 7 ( 1922)). them at the time of assault. Evidence offered by a defendant to support a self defense theory must be relevant. State v. Bell, 60 Wn. App. 561, 564, 805 P. 2d 815 ( 1991) ( citing ER 402). And even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. ER 403. Sylvio contends that the trial court misapplied ER 403 because it failed to determine whether the prejudice was actually unfair and whether it substantially outweighed the probative value. Contrary to Sylvio' s assertions, the record shows that the trial court considered whether the evidence of Michael' s past actions was unfairly prejudicial. 7 43692- 2- 11 First, Sylvio Appellant' Br. s at argues that the trial But the trial 23. court never court specifically used used the the word " unfair" in its rulings. words " unfair prejudice" in its written conclusions of law excluding evidence. CP at 253 -54. Next, Sylvio appears to argue that the trial court excluded evidence when there was any prejudice and not just unfair prejudice. But it is clear from the rulings that the trial court recognized that most of the evidence was prejudicial and only the excluded evidence that was unfairly. For example, the trial court so. admitted evidence of the recent kitchen island fight between Michael and Sylvio because it noted that the evidence was only " somewhat prejudicial" when compared to its probative value but it prejudic[ that evidence excluded ial]" teenaged Michael bit or a scratched Ruth because it was " unfair[ ly] when compared to its probative value. RP ( May 9, 2012) at 11; CP at 253. Sylvio also focuses on the trial court' s exclusion of Michael' s statements after the fight with Sylvio in the slight But the trial court stated that the relevance of these statements was garage. because the event prejudice, confusion of took 20 place the issues, or years ago misleading the and that there 2 RP jury." at was 297. a danger of "[ u] nfair The trial court applied the correct standard and came to a reasonable conclusion given the facts. Sylvio next argues that the trial court improperly limited the admission of evidence because it required the evidence to be ( 1) based on Sylvio' s personal knowledge and ( 2) not too remote based First, the trial court did not require that the evidence of Michael' s prior acts be in time. on Sylvio' s personal assaults and threats former friends, Sylvio' girl s state considering the of knowledge. Rather, it concluded that evidence of Michael' s past including his 2005 arrest, his alleged assaults against against other people and mind his at evidence at alleged the time assault of issue. Sylvio the of another present was not child assault. the target of on the bus was irrelevant to This conclusion is reasonable the excluded threats and assaults, 43692 -2 -II and he fails to show how Michael' s fights with other children or former girl friends suggested that he would Michael harm his father. was a child or teenager. Additionally, many of the incidents took place years ago when It was reasonable for the trial court to exclude this evidence as irrelevant. Second, the trial court did not err when it excluded evidence that was too remote in time, such as fights evidence of Wn. App. and the at threats from his childhood and victim' s violent character 218. to that teenage years. which is not too Washington case law limits remote in time. See Cloud, 7 This limitation is logical because evidence must be relevant and a victim' s actions 20 years before an assault are usually not relevant to the circumstances of a present assault. Therefore, the trial court properly recognized that state of mind evidence is limited by relevance and remoteness and it properly applied those principles here when it excluded evidence from Michael' s childhood and teenage years. Open Door Doctrine C. Finally, Sylvio argues that the State opened the door to evidence that Michael had abused others when it elicited testimony from Michael that Sylvio had abused him as a child. The open door doctrine does not apply in this case because evidence that Michael had abused others is not necessary to explain, clarify, or contradict evidence that Sylvio had abused Michael. Additionally, evidence that Michael had abused others is not relevant to an issue at trial. O] nce a party has raised a material issue, the opposing party is permitted to explain, clarify, or contradict the evidence." State v. Berg, 147 Wn. App. 923, 939, 198 P. 3d 529 ( 2008) 9 43692- 2- 11 other grounds abrogated on State by v. Mutch, 171 Wn.2d 646, 254 P. 3d 803 ( 2011). This means that otherwise inadmissible evidence may be admissible if a party first " opens the door" and the inadmissible evidence is relevant to an issue at trial. State v. Stockton, 91 Wn. App. 35, 40, 955 P. 2d 805 ( 1998). Sylvio fails to show how evidence that Michael had abused others explains, Here, clarifies, or contradicts evidence that Sylvio had abused Michael when Michael was a child. At trial, after Michael testified that Sylvio had hit him as a child, Sylvio argued that he should be able to present evidence of his relationship with Michael when Michael was younger. But the trial court allowed Sylvio to present evidence of Michael and Sylvio' s relationship; it limited only evidence regarding Michael' s relationships with others. 2 Sylvio failed to offer additional evidence of Michael and Sylvio' s relationship or explain how evidence of Michael' s relationships with others relates to Sylvio allegedly hitting Michael as a child. Further, as discussed above, evidence of Michael' s abuse of others is not relevant to an issue at trial because many of the incidents were remote in time and none of the incidents suggested that Michael would harm his father. The trial court carefully considered the character evidence offered by both sides and reasonably excluded evidence that was remote in time and included parties other than Michael and Sylvio and admitted of evidence interactions between Michael and Sylvio. Because this decision was reasonable, we affirm. 2 The trial court did, however, exclude Michael' s statement to Sylvio 20 years ago that he was going to get [ Sylvio] with a bat while [ he was] sleeping." 2 RP at 294. But the trial court admitted evidence of the fight that preceded the statement and it reasonably concluded that the comment was irrelevant and unfairly prejudicial. 10 43 692 -2 -II INEFFECTIVE ASSISTANCE II. Next, Sylvio argues that his counsel was ineffective because counsel failed to object and failed to introduce But counsel did object to some of the evidence Michael complains evidence. about, and counsel' s failure to object to the remaining evidence can be characterized as trial strategy. Further, counsel' s failure to introduce evidence was not prejudicial. Under the Strickland3 test, the defendant must show that counsel' s performance was deficient and that this deficient Strickland, 466 U. S. standard of reasonableness." legitimate trial strategy on or at 688. Performance is not deficient if it is State v. Hendrickson, 129 Wn.2d 61, 77 -78, 917 tactics. To establish prejudice, the defendant must show a reasonable probability that P. 2d 563 ( 1996). the deficient him. State v. Thomas, 109 Wn.2d 222, Performance is deficient only if it "[ falls] below an objective 225 -26, 743 P. 2d 816 ( 1987): based performance prejudiced performance Strickland, 466 U. S. at affected 694). the trial' s outcome. Thomas, 109 Wn.2d at 226 ( quoting The defendant' s failure to prove either prong ends our inquiry. Hendrickson, 129 Wn.2d at 78. Sylvio first argues that counsel was ineffective because counsel failed to object to that ( 1) evidence 3) Kathy Sylvio had obtained a abused protection Michael, ( 2) order against Kathy had cheated on her previous husband and Michael. But Sylvio' s counsel did object to evidence that Sylvio had abused Michael and evidence that Kathy had cheated' on her husband. The trial court ruled during pretrial proceedings that limited evidence that Sylvio had abused Michael would be admissible. throughout the trial. husband. Sylvio' Sylvio' s counsel objected to the trial court' s ruling multiple times During cross -examination, the State asked Kathy if she had cheated on her s counsel objected and the trial court sustained the objection. Thus, counsel' s 3 Strickland v. Washington, 466 U. S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). 11 43692 -2 -II performance was not deficient because counsel objected to evidence that Sylvio had abused Michael and evidence that Kathy had cheated on her husband. Additionally, counsel' s decision to elicit testimony from Kathy regarding the restraining order and to not object to further questioning concerning' this issue was a legitimate trial strategy. Kathy testified that she had sought a order restraining because she was afraid of Michael. This evidence supports Sylvio' s theory at trial that Michael was dangerous and that Sylvio' s use of force on October 3 was reasonable. 4 Counsel was not ineffective for failing to object. Sylvio next argues that counsel was ineffective because counsel failed to offer evidence supporting his motions in limine. Even assuming that this was deficient performance, Sylvio fails to show that this performance affected the outcome of the trial. The trial court excluded some of Sylvio' s evidence regarding Michael' s past violent acts, but none of the evidence was excluded for lack of proof. Instead, the trial court excluded the evidence because it was irrelevant or the probative value was outweighed by unfair prejudice. Sylvio fails to show how additional evidence about these instances would have affected the outcome at trial. He does not argue that the trial court misconstrued or lacked material facts;' he instead argues that the trial court erred in its legal conclusions. Accordingly, he cannot show that additional evidence would have changed the outcome if offered. 4 In his heading and assignment of error, Sylvio states that counsel should have objected to evidence that the restraining order was dismissed, but in his very brief argument regarding this issue he states only that counsel should have objected to evidence that Kathy obtained the order. We focus argues on the issues in the that the State argument rather emphasized the than those in the protection order heading. Additionally, Sylvio in closing argument. But the State mentioned the order only once and Sylvio fails to provide any grounds on which counsel should have objected to this argument. Sylvio does not assign error to any of the trial court' s findings of fact; thus, they are verities on appeal. State v. Stevenson, 128 Wn. App. 179, 193, 114 P. 3d 699 ( 2005). 12 43692 - -II 2 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. 0405 it is so ordered. Worswick, C. J. 13
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