State Of Washington, Respondent V Baron Dell Ashley, Jr., Appellant (Majority)

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FILED COURT OF APPEALS DIVISION 11 1015 FEB 18 AM 9: 17 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 45173 -5 -II STATE OF WASHINGTON, Respondent, v. PART PUBLISHED OPINION BARON DELL ASHLEY JR., Appellant. JOHANSON, C. J. — imprisonment (domestic LFOs). Baron Dell Ashley Jr. appeals his jury trial conviction for unlawful violence), his sentence, and the imposition of legal financial obligations He argues that the trial court erred when it included a prior attempted second degree assault juvenile adjudication as one point in his offender score because it did not qualify as a violent offense under RCW 9. 94A. 030( 54). In the published portion of this opinion, we hold that the trial court did not err in counting the prior attempted second degree assault juvenile adjudication as one point and adopt the reasoning set forth in Division One of this court' s opinion State 1 v. Becker, 59 Wn. App. 848, 801 P. 2d 1015 ( 1990). RCW 9A.40. 040( 1); RCW 10. 99. 020( 5). Ashley further argues that the trial court No. 45173 -5 -II erred in ( 1) imposing admitting evidence of prior acts of domestic violence under ER 404(b) and ( 2) LFOs. In the unpublished portion of this opinion, we hold that the trial court did not abuse its discretion in admitting the prior bad acts evidence and that the LFO issue is not ripe for review. Accordingly, we affirm Ashley' s conviction, his sentence, and his LFOs. FACTS A jury found Ashley guilty of unlawful imprisonment (domestic violence).2 The trial court calculated Ashley' s sentence with a seven -point offender score, which included one point for 1999 Ashley' s attempted second degree assault juvenile adjudication. Ashley appeals his sentence. ANALYSIS Ashley argues that the trial court erred in scoring his 1999 attempted second degree assault juvenile adjudication as one point attempt offense, it did not qualify in his He contends that because this was an offender score. as a violent offense under RCW 9. 94A. 030( 54), and it should have counted only as one -half a point. We disagree. RCW 9. 94A.525 9. 94A. 525( 7) subsection ( provides, " 11), ( 12), establishes how to calculate a defendant' s offender score. RCW If the present conviction is for a nonviolent offense and not covered by or ( 13) of this section, count one point for each adult prior felony conviction and one pointfor eachjuvenile prior violentfelony conviction and 1/ 2 point for each juvenile prior nonviolent offense" as felony conviction." ( including, among Emphasis added.) other offenses, "[ RCW 9. 94A.030( 54) defines a " violent a] ny felony defined under any law as a class A 2 We describe the background facts and procedure in more detail in the unpublished portion of this opinion. 2 No. 45173 -5 -II felony or an 9. 94A. 030( 54)( attempt a)( i), to commit a class A felony" and second degree RCW assault. (viii). It does not include attempted second degree assault in this definition. Ashley argues that because attempted second degree assault does not fall under RCW 9. 94A.030( 54)' s violent offense definition, the trial court erred when it assigned one point to his offender score for that offense rather than one -half a point. But RCW 9. 94A. 525( 4) requires the sentencing court to "[ s] core prior convictions for felony anticipatory offenses ( attempts, criminal solicitations, and criminal conspiracies) the same as if they were convictions for completed offenses." Thus, under RCW 9. 94A. 525( 4), Ashley' s prior attempted second degree assault would be treated as a completed second degree assault for purposes of under calculating his offender score. RCW 9. 94A. 030( 54)( a)( viii), RCW Because second degree assault is a violent offense 9. 94A.525( 4) provides that the resulting offender score for that offense would be one point. As a result, it could be argued that RCW 9. 94A.030( 54) and RCW 9. 94A. 525( 4) conflict. Division One of this court addressed a substantially similar issue in Becker, 59 Wn. App. 848. In Becker, the sentencing court counted a prior attempted second degree robbery conviction as two points under former subsection ( 9) of the former offender score statute, RCW 9. 94A.360 1990), which is now codified as 9. 94A. 525( 7), the provision at RCW 9. 94A.525( 8). 59 Wn. App. at 851. Similar to RCW issue here, former RCW 9. 94A.360( 9) provided for a higher offender score for prior violent felony convictions: If the present conviction is for a violent offense and not covered in subsection ( 10), 11), ( 12), or ( 13) of this section, count two pointsfor each prior adult andjuvenile felony conviction, one point for each prior adult nonviolent felony conviction, and 1/ 2 point for each prior juvenile nonviolent felony conviction. violent Emphasis added.) 3 No. 45173 -5 -II On appeal, Becker argued that his prior attempted robbery conviction did not count as two points in his offender score because it was not defined as a " violent offense" under the general definitional statute, former RCW 9. 94A.030( 29) ( 1988) ( now RCW 9. 94A.030( 54)). Becker, 59 Wn. App. at 850 -51. Noting an " apparent" conflict between the former definitional statute and the former offender score statute, Division One held that the plain language of the statutes did not conflict and, instead, could be harmonized: The apparent conflict in the sections is based on the assumption that the attempted robbery can only receive two points if it is a " violent offense." Contrary to Becker' s contention, the offense does not receive two points because it is a violent offense, but rather, it receives two points because the completed crime of robbery in the second degree would receive two points and the attempted robbery is to be treated as a completed crime. According to the plain language of [ former] RCW 9. 94A.360( 5) the attempt must be treated the same as the completed crime. Such a reading of the two sections gives effect to each section and does not distort the language of the sections. Becker, 59 Wn. App. at 852. Division One subsequently followed Becker in State v. Howell, 102 Wn. App. 288, 292 -95, 6 P. 3d 1201 ( 2000), and Division Three has followed Becker in State v. Knight, 134 Wn. App. 103, 138 P.3d 1114 ( 2006), aird, 162 Wn.2d 806, 174 P. 3d 1167 ( 2008). The same reasoning applies here. Ashley argues that Becker and Knight were wrongly decided because they " did not adequately take into account the fact that, where the definitional section of the [ Sentencing Reform Act of 1981], [ RCW 9. 94A]. 030, provides that certain offenses are violent offenses, non listed definitionally offenses are definitional Appellant statutes are " at 5. Reply Br. not violent offenses." integral to the statutory of Appellant scheme and must be at 5. He contends that given effect." Reply Br. of We disagree that Becker and Knight did not give effect to the definitional statute; they did so by harmonizing the definitional statute with the offender score statute. 4 No. 45173 -5 -II Ashley also argues that any ambiguity must be resolved in his favor under the rule of lenity. But because the approach in Becker harmonizes the plain language of the statutes, there is no ambiguity and the rule of lenity does not apply. We also note that the legislature' s failure to amend the statutes in the 24 years since Becker was issued reflects its acquiescence to the court' s conclusions in that case. See State v. Berlin, 133 Wn.2d 541, 558, 947 P. 2d 700 ( 1997) ( " The failure of the Legislature to amend a statute to change the statute' s judicial construction is reflective of legislative acquiescence in the Court' s interpretation. "). For the reasons stated in Becker, and by harmonizing the definitional and offender score statutes, we conclude that the trial court did not err in treating the attempted second degree assault the same as the completed crime and including this prior offense as one point in Ashley' s offender score. We affirm Ashley' s conviction and his sentence. A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. Ashley under further ER 404( b), argues that the trial court erred in ( 1) admitting prior bad acts evidence and ( 2) imposing the LFOs. These arguments also fail. ADDITIONAL FACTS I. BACKGROUND On May 27, 2013, officers from the Vancouver Police Department arrived at Ashley' s sister' s apartment to arrest Ashley and his sister on 5 outstanding arrest warrants. The officers No. 45173 -5 -II knocked repeatedly on the door. Although the officers had initially heard voices inside the apartment, no one responded. About 45 minutes later, the officers obtained a key from the apartment manager and announced that they had a key and were opening the.door. When they opened the door, the officers called out to anyone inside the apartment, explained they were the police and were not going away, and asked the people inside to come out. Makayla Gamble, Ashley' s former girlfriend, and her children met the officers in the downstairs living area. Once Gamble was outside, the officers asked Gamble if Ashley was inside, and she told them that he was upstairs. She also told the officers that Ashley had detained her in the bathroom. II. PROCEDURE A. MOTION To ADMIT PRIOR BAD ACTS EVIDENCE The State charged Ashley by amended information with unlawful imprisonment (domestic violence). against Before trial, the State moved to introduce evidence of Ashley' s prior domestic violence Gamble. The State argued that this evidence was to show why Ashley was able to keep Gamble in the bathroom without her consent despite the lack of any explicit threat. At the motion hearing, Gamble testified that she had been in a relationship with Ashley from 2000 to 2005, and that he was the father of two of her children. She testified that she and her children were visiting Gamble' s sister when the police arrived and that Ashley had put her and her infant in an upstairs bathroom so the police would not hear them. She remained in the bathroom for 40 to 50 minutes despite her telling Ashley several times that she wanted to leave. She further testified that she did not feel free to leave —in part because prior domestic abuse by Ashley caused 6 No. 45173 -5 -II her to fear Ashley. She stated that if it had not been for her history with Ashley, she would have gone downstairs rather than stay in the upstairs bathroom. Gamble also testified about several past domestic violence incidents that happened between 2000 and police, 2008. but she Gamble stated that she had reported only one incident, a 2004 incident, to the then " dropped it." 1A Report of Proceedings ( RP) at 78. In addition, Gamble testified that she still feared Ashley and that she felt unsafe when she was in the bathroom because of his assaultive history. •But she admitted that Ashley did not expressly threaten her when he told her to go in the bathroom and be quiet. The State argued that Ashley' s prior violence against Gamble explained the dynamics of their relationship and would help the jury understand why Ashley was able to control Gamble' s behavior without any express threats and why Gamble initially complied with Ashley' s directions and did not yell for help. The State further argued that although the past acts of violence occurred several years earlier, these acts were still relevant because Gamble was aware that Ashley was capable of violence against her. Ashley argued that the trial court should not admit this evidence because the State was not using it to establish an element of the offense, it was not relevant to Gamble' s credibility because she was not recanting her earlier statements, Gamble' s testimony and the single police report from 2004 were not sufficient to establish the prior acts by a preponderance of the evidence, and the passage of time had made the incidents less probative. The trial court found that ( 1) Gamble' s testimony established the prior acts of violence by a preponderance of the evidence, ( 2) the purpose of the evidence was to show the restraint was without her consent because of her ongoing fear based on this history, and ( 3) the probative value of the prior acts evidence outweighed the possible prejudice. 7 The trial court admitted the prior No. 45173 -5 -II domestic violence evidence and invited the parties to submit limiting instructions related to this evidence. B. TRIAL At trial, Gamble testified that when the police arrived on May 27, Ashley forced her to remain in an upstairs bathroom. Gamble told Ashley twice that she wanted to leave the bathroom and to go Ashley when home; Ashley would close he saw her it open did not respond. again. the She also tried to open the door three or four times, but Once when she opened the door, Ashley was in the hallway, and door, " his face was different," and " he looked pissed off." 1B RP at 195. Gamble also testified about four instances of past physical abuse that occurred from 2000 to 2005. She testified that she had only called the police after the 2004 incident and that she later recanted her allegations because she loved Ashley. In addition, Gamble testified that she had only seen Ashley three or four times since 2008. On cross- examination, Gamble admitted that Ashley did not yell at her, threaten her, or physically force her into the bathroom. And she agreed that she " remained in the bathroom under her] own power." 1B RP at 203. But on redirect, Gamble reiterated that Ashley did not have to threaten to harm her to keep her in the bathroom because she was still afraid of him given their past history and because all he had to do was to look at her a certain way and she would comply. Ashley did not call any witnesses. The jury found Ashley guilty of unlawful imprisonment ( domestic violence). Although Ashley argued at sentencing that he was not able to pay the LFOs, the trial court also imposed 8 No. 45173 -5 -II various LFOs. The judgment and sentence does not contain any findings regarding Ashley' s ability to pay LFOs. ADDITIONAL ANALYSIS I. ER 404( B) EVIDENCE Ashley argues that the trial court erred in admitting the prior bad acts evidence under ER 404( b) because ( 1) the State failed to the evidence was not relevant to prove an the element by prior acts of the a preponderance of crime, 3) and ( the evidence, ( 2) the evidence was overly prejudicial because the prior acts were too remote in time to be probative. We disagree. A. STANDARD OF REVIEW AND ER 404(B) ANALYSIS We review a trial court' s evidentiary Wn.2d 792, 810, 975 P. 2d 967, when cent. its evidentiary ruling is "' untenable reasons. ' ex rel. Carroll v. State v. rulings for abuse of discretion. State v. Finch, 137 denied, 528 U.S. 922 ( 1999). A trial court abuses its discretion manifestly unreasonable, or exercised on untenable grounds, or for Downing, 151 Wn.2d 265, 272, 87 P. 3d 1169 ( 2004) ( quoting Junker, 79 Wn.2d 12, 26, 482 P. 2d 775 ( 1971)). State It is the appellant' s burden to prove abuse of discretion. State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 ( 1999). ER 404( b) the prohibits character of a person in the admission of order to evidence show action of other crimes, wrongs, or acts "` in conformity therewith.' 161 Wn.2d 168, 174 -75, 163 P. 3d 786 ( 2007) ( quoting ER 404( b)) acts evidence, the trial misconduct occurred, ( court must "( 1) to prove State v. Foxhoven, Before admitting prior bad find by a preponderance of the evidence that the 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 against the prejudicial effect. ' 9 Foxhoven, 161 Wn.2d at 175 ( quoting No. 45173 -5 -II State v. Thang, 145 Wn.2d 630, 642, 41 P. 3d 1159 ( 2002)). " Preponderance of the evidence means that considering all the evidence, the proposition asserted must be more probably true than not." State v. Ginn, 128 Wn. App. 872, 878, 117 P. 3d 1155 ( 2005), review denied, 157 Wn.2d 1010 2006). B. PROOF OF PRIOR BAD ACTS Ashley argues that the evidence did not establish the prior bad acts by a preponderance because Gamble did not provide any police or medical documentation of the incidents and because Gamble admitted that she called the police to report only one of the incidents and then recanted her allegations. We disagree. At the motion hearing, Gamble testified about each of the incidents she later described to the jury, that testimony was not disputed, and the trial court apparently found Gamble' s testimony credible. Ashley cites to no authority establishing that a witness' s testimony alone cannot establish a fact by a preponderance of the evidence. Furthermore, to the extent the trial court' s decision rested on it finding Gamble' s testimony credible, we do not review a trial court' s credibility determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990). Accordingly, this argument fails. C. RELEVANCE Ashley next argues that the evidence was not relevant to an element of the crime. Again, we disagree. A person commits RCW 9A. 40. 040( 1). unlawful imprisonment if he " knowingly restrains another person." RCW 9A.40. 010( 6) provides, Restrain" means to restrict a person' s movements without consent and without legal authority in a manner which interferes substantially with his or her liberty. 10 No. 45173 -5 -II Restraint is " without consent" if it is accomplished by ( a) physical force, intimidation, or deception. Emphasis added.) The trial court expressly found that the purpose of the evidence was to show that the restraint was without Gamble' s consent because of her ongoing fear based on Ashley' s history of violence with her. Essentially, the trial court found that the domestic violence evidence was material and relevant to both Gamble' s lack of consent and to whether Ashley accomplished the restraint by intimidation. We agree that personal history with a violent person can certainly be relevant to whether a particular action or behavior amounts to intimidation from the victim' s perspective. 3 Accordingly, this argument fails. D. PROBATIVE VS. PREJUDICIAL VALUE Ashley next argues that because the domestic violence incidents occurred several years before this incident, they were too remote to be probative, and, thus, the trial court erred when it determined that their prejudicial value did not outweigh any probative value. Again, we disagree. Although the evidence of the prior domestic violence incidents is potentially highly prejudicial, that evidence was also highly probative in this instance because the State claimed that Ashley had restrained Gamble through the use of a subtle form of intimidation that the jury could fully understand only if it was aware of the violent nature of Gamble and Ashley' s relationship. Although the prior incidents had taken place several years earlier, this history was still highly 3 Citing State v. Magers, 164 Wn.2d 174, 189 P. 3d 126 ( 2008), 468, 475, 259 P. 3d 270, review and State v. Baker, 162 Wn. App. denied, 173 Wn.2d 1004 ( 2011), Ashley also argues that " this sort of prior act evidence is appropriate in cases where the alleged victim recants, to show, why she do so out of fear, which was not the circumstance here." Br. of Appellant at 6. Although might these cases state that prior domestic violence evidence is admissible " to assist the jury in judging the credibility of a recanting victim," these cases do not establish that this is the only purpose for which the trial court can admit such evidence. Magers, 164 Wn.2d at 186; see also Baker, 162 Wn. App. at 474 -75. 11 No. 45173 -5 -II relevant to how Gamble perceived the situation, and Gamble' s testimony about her relative lack of contact with Ashley in recent years explained why these incidents were so dated. Accordingly, this argument fails. The trial court conducted the proper ER 404(b) analysis, and Ashley does not show that its findings were improper. Thus, we hold that the trial court did not abuse its discretion when it admitted this evidence. II. LFOs Finally, Ashley argues that the trial court erred in imposing LFOs. Because the trial court did not make a.written finding as to Ashley' s ability to pay, and Ashley has not shown that the State has sought to enforce the LFOs, Ashley is not an aggrieved party, and this issue is not yet ripe for review. Hathaway, 161 RAP 3. 1; State Wn. App. v. Lundy, 176 Wn. App. 96, 108 -09, 308 P. 3d 755 ( 2013); State v. 634, 651, 251 P. 3d 253, review denied, 172 Wn.2d 1021 ( 2011). Accordingly, we decline to further address this issue. We affirm Ashley' s conviction, his sentence, and his LFOs. We concur: MAXA, J. SUTTON, J. 12

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