State v. Baker

• Decision Date: 22 February 2023
• Docket Number: 56386-0-II
• Parties: STATE OF WASHINGTON, Respondent, v. JERALD LEON BAKER, JR., Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. JERALD LEON BAKER, JR., Appellant.

No. 56386-0-II

Court of Appeals of Washington, Division 2

February 22, 2023

UNPUBLISHED OPINION

PRICE J.

Jerald Leon Baker Jr. appeals his conviction for second degree assault by strangulation. Baker argues that (1) the trial court erred in admitting expert testimony regarding strangulation, (2) the expert witness gave an improper opinion of Baker's guilt, and (3) the trial court erred in imposing a $500 victim penalty assessment (VPA) and supervision fees as a condition of community custody. We affirm Baker's conviction and the imposition of the $500 VPA, but remand to the trial court to strike the supervision fees.

FACTS

I. Background Facts

Baker met and began dating R. Johnson in 2019. Their relationship began to get "rocky" in early 2020. 1 Verbatim Report of Proceedings (VRP) (Sept. 1, 2021) at 93. In May 2020, Johnson drove to Baker's home to cook dinner and spend the night. She had with her a purse, work clothes, and some items for school. After eating dinner, Baker and Johnson got into an argument and Johnson decided to leave. Johnson went outside to her car, but when she discovered it was locked, she asked Baker to return her things, which included her car keys, so she could leave. Baker refused closed the door to his home, and locked Johnson outside.

Johnson got in Baker's truck to lay down, hoping to wait there until Baker unlocked the door to his home so she could retrieve her things. After some time, Baker left the home to look for Johnson on his bicycle. Johnson remained laying down in the truck. Once Baker left the area on the bicycle, she quietly got out of the truck and tried to enter the home to retrieve her things, but the home remained locked. As Johnson was returning to the truck, Baker spotted her and the two began arguing again.

Johnson tried to return to the backseat of the truck, but Baker told her to leave or he would call the police. Johnson refused and Baker then reached into the truck to attempt to pull Johnson out, grabbing her by her shoulder and clothes. Unable to pull Johnson out of the truck, Baker got into the backseat with her. As they continued arguing, Baker attacked Johnson, grabbing her from behind and putting his forearm around her neck with his hand holding his other arm. Johnson tried to pull Baker's hands off of her, telling him to stop because he was hurting her and she could not breathe. Baker told her he did not care and that "nobody would find [her] out [t]here." 1 VRP (Sept. 1, 2021) at 118. Johnson began to see spots, but did not blackout. After about a minute, Baker stopped putting pressure on her neck, but Johnson's face remained on the bench seat as Baker continued to hold her head down.

Frightened, Johnson began apologizing to Baker, causing Baker to finally let her go. They both got out of the truck and returned to Baker's home, where Johnson noticed she had a scrape across her face and was bleeding. Later, after secretly finding her car keys, Johnson snuck out of the home and drove away.

Following a brief stop at a gas station to look for help, Johnson drove herself to an emergency room just before midnight. While Johnson explained what happened, the emergency room doctor examined her and took photographs. Johnson went home directly after the examination without filing a police report.

Two days later, Johnson filed a police report. Law enforcement interviewed her and took photographs of her injuries. Baker was then arrested and charged with second degree assault by strangulation and fourth degree assault, with special allegations of domestic violence against an intimate partner for each count.

The case proceeded to a jury trial.

II. The Trial

A. Motions in Limine

Prior to trial, the State filed a motion in limine to admit expert testimony under ER 702 on the topic of strangulation from registered nurse, Lynne Berthiaume. Providing an offer of proof as to Berthiaume's expected testimony, the State argued she was qualified as an expert on strangulation and her testimony would be helpful to the jury. Berthiaume's testimony would explain how strangulation occurred, as well as common symptoms and injuries that result from strangulation, and why those injuries may not be immediately visible after the attack. The State argued this testimony would be helpful for the jury to understand the State's evidence of Johnson's alleged strangulation, which included how Johnson's body reacted during and after the incident, and whether this was consistent with the definition of strangulation. The State said this testimony would differ from the emergency room doctor's testimony because he would be testifying as a fact witness about his observations on the night of his examination, not as an expert witness. The State also sought permission for Berthiaume to express her expert opinion that, based on her review of the reports and photographs, Johnson had, in fact, been strangled.

Baker objected, generally arguing that Berthiaume should not be allowed "to testify as an expert witness." 1 VRP (Aug. 31, 2021) at 36. Baker specifically argued that the expert testimony was not necessary because the testimony was both cumulative and confusing. Baker said the testimony was cumulative because the doctor who treated Johnson at the emergency room the night of the attack was going to testify and would likely give similar testimony as Berthiaume, including the explanation of specific medical terms associated with strangulation and photographs taken of Johnson's injuries. Baker also argued the testimony was confusing because it could imply the emergency room doctor was "negligent in collecting history from . . . Ms. Johnson" and would force the jury to decide between believing the expert or the emergency room doctor. 1 VRP (Aug. 31, 2021) at 34. He further argued Berthiaume's testimony regarding signs of strangulation could confuse the jury because those signs would not necessarily appear in any of her medical records from the night of the attack. Baker made no other specific arguments about Berthiaume's proposed testimony.

The trial court granted the motion in limine, deciding that, assuming the State could lay the proper foundation, Berthiaume could testify as an expert witness under ER 702 because her testimony would assist the jury. The trial court stated,

[B]ecause the State has the burden of proof . . . they should be able to call an expert . . . because it is so central to what they have to prove . . . [her testimony] is focusing on strangulation, whereas the general treating physician was looking at the whole person trying to figure out what was ailing her. . . . [I]t's not really cumulative in the sense that [Berthiaume] is focusing on the issue of strangulation . . . [her] testimony will be admissible because it will assist the trier of fact, the jury, in viewing the evidence.

1 VRP (Aug. 31, 2021) at 37-38.

B. Trial Testimony

Johnson testified to the facts presented above.

Also testifying at trial was Dr. Daniel Stewart, the emergency room doctor who treated Johnson the night of the attack. Dr. Stewart explained Johnson arrived at the emergency room the night of the attack because of pain in her neck, face, inner thigh, and upper arm due to a physical assault. He noticed swelling on her neck and bruising on her arms and back. Dr. Stewart explained Johnson's injuries to the jury with several of the photographs taken during the examination. He diagnosed Johnson with injuries from physical assault and further said that her injuries "would be consistent with what would appear with strangulation . . . ." 4 VRP (Sept. 14, 2021) at 474.

On cross-examination, Dr. Stewart testified he did not know what caused Johnson's scratches on her face. He further explained it was possible the swelling injuries on Johnson's neck could have been caused by a blunt instrument, and that a vigorous strangulation was not the only potential cause of the injuries.

Sheriff's Deputy Jennifer Wade testified she responded to Johnson's report and took pictures of Johnson's injuries that day. She explained the photographs showed some bruising and scratch marks on Johnson's neck, face, chest, thigh, and lips.

Finally, consistent with the State's motion in limine, Berthiaume testified as an expert witness. Berthiaume testified she was hired to consult on Johnson's case and had reviewed the police report, the victim's written statement, medical records, and photographs taken by law enforcement and the emergency room doctor. She explained her qualifications as a registered nurse and her professional experience with domestic violence injuries, including specialized training in strangulations. Berthiaume testified about the medical difference between choking and strangulation and that patients often confuse the two. She also explained that vigorous strangulation can also lead to petechial hemorrhaging, "little pin-point red marks," which occurs when the blood vessels burst due to excessive force and that the lack of blood flow from strangulation, or a "choke hold," could lead to death. 3 VRP (Sept. 13, 2021) at 321-22.

Berthiaume said most strangulation victims did not present injuries on the first day given that people bruise differently. But the more "vigorous" the strangulation, the sooner bruising and injuries presented. 3 VRP (Sept. 13, 2021) at 320. Bruising on the neck, chin, eyes, face, and lips were common in vigorous strangulations, as well as a raspy voice, difficulty breathing, seeing spots, and ringing in the ears. She further said the fold of a person's elbow could cause strangulation when used in a "choke hold." 3 VRP (Sept. 13, 2021) at 322.

Using photographs of Johnson's injuries taken at the emergency...