State v. England, No. 32656-6-II (Wash. App. 7/5/2006)
| Decision Date | 05 July 2006 |
| Docket Number | No. 32656-6-II,32656-6-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JUAN ANGEL ENGLAND, Appellant. |
Appeal from Superior Court of Pierce County. Docket No: 03-1-01068-7. Judgment or order under review. Date filed: 12/10/2004. Judge signing: Hon. R Worswick Lisa.
Counsel for Appellant(s), Rebecca Wold Bouchey, Attorney at Law, PO Box 1401, Mercer Island, WA 98040-1401.
Counsel for Respondent(s), P. Grace Kingman, Attorney at Law, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
A jury convicted Juan Angel England of second degree child molestation. England appeals his conviction arguing that the trial court deprived him of his right to a defense by (1) excluding some character witnesses on foundational grounds and (2) preventing him from calling others by ruling that the State was permitted to cross-examine the witnesses regarding their knowledge of England's prior convictions. Because the trial court's rulings were proper, we affirm.
The State charged England with one count of second degree child molestation in violation of RCW 9A.44.086.1 At trial, England offered testimony regarding his reputation for truthfulness and veracity and sexual morality and decency. The State moved in limine to exclude the evidence, but the trial court ruled that England would be allowed to present the testimony, provided that he first laid a proper foundation for each witness.
England called five character witnesses: Lola Bailey, David England, Melody Lambert, Paris Conway, and Scheneitha Franks. The trial court concluded that England did not lay the proper foundation to admit Bailey and Franks's testimony. But it held that he laid an adequate foundation to admit Lambert's testimony regarding England's reputation for truth and veracity and sexual morality and decency; and David England and Conway's testimony regarding England's reputation for truthfulness and veracity.
During pre-testimonial voir dire, Conway stated that England had `always been really honest' and had `never done anything wrong.' 4 Report of Proceedings (RP) at 290. Citing ER 405, the State asked to cross-examine Conway on his knowledge of England's two prior convictions for hit and run unattended and driving while under the influence (DUI). Over England's relevance objection, the court ruled that if Conway testified to England's character, the State could ask Conway about his knowledge of England's prior convictions, explaining that: `it seems as though the basis for {Conway's} opinion was his discussions within the community and his opinion that the defendant had never done anything wrong; so I will allow it.' 4 RP at 303. Because of this ruling, the defense called only Lambert and David England to testify as character witnesses. It did not call Conway to testify.
The jury found England guilty as charged. Before sentencing, England moved for a new trial based on (1) the trial court's exclusion of the reputation testimony; (2) the trial court's ruling allowing the State to cross-examine Conway about his knowledge of England's two prior convictions; and (3) the trial court's refusal to instruct the jury on the lesser offense of fourth degree assault.2
The court denied England's new trial motion stating:
With regard to the {character} witnesses, we went through each of those witnesses one by one. . . . I carefully listened to give Mr. England an opportunity to present all of the factually and legally relevant testimony that he possibly could. {His attorney} had free rein to ask all of the witnesses questions that he needed to. There was effective cross-examination of the witnesses. I made the decisions that I did based on the testimony they gave and based on the rules of evidence at the time. So I believe that was proper.
The trial court sentenced England to a standard sentence range of 15 months. England appeals.
In this appeal, we address two issues: (1) whether the trial court abused its discretion by excluding England's proposed character witness testimony; and (2) whether the trial court abused its discretion by allowing the State to cross-examine Conway about his knowledge of England's criminal history.
England argues that the trial court denied him the right to present his defense by excluding character testimony from Bailey, David England, and Franks regarding England's reputation for truthfulness and veracity and sexual morality and decency. We disagree.
ER 404(a)(1) permits a defendant to introduce evidence of his character if it is pertinent to the crime charged.3 State v. Kelly, 102 Wn.2d 188, 193-95, 685 P.2d 564 (1984). ER 405 defines the acceptable methods of introducing evidence of a defendant's pertinent character trait. Kelly, 102 Wn.2d at 194. Such proof must be made through testimony of a character witness who is knowledgeable about the defendant's reputation in the community for the specific character trait at issue. See also State v. Callahan, 87 Wn. App. 925, 934, 943 P.2d 676 (1997); 5A Karl B. Tegland, Washington Practice: Evidence Law and Practice, sec. 405.2, at 3 (4th ed. 1999) (citing State v. Argentieri, 105 Wash. 7, 177 P. 690 (1919)).
A party seeking to admit reputation testimony must first lay a foundation establishing that the witness is familiar with the person's reputation and that his testimony is based on the community's perception of that person as regards the relevant character trait. Callahan, 87 Wn. App. at 935. The witnesses' personal opinion is not competent testimony nor is it an adequate foundation to admit reputation evidence. Kelly, 102 Wn.2d at 195 ().
We review a trial court's decision regarding the adequacy of the foundation necessary to admit evidence for an abuse of discretion. Callahan, 87 Wn. App. at 934. On appeal, the party offering the evidence must prove the trial court abused its discretion. State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39 (1982), rev'd on other grounds, 99 Wn.2d 538 (1983). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. State v. Land, 121 Wn.2d 494, 500, 851 P.2d 687 (1993).
England maintains the trial court abused its discretion by excluding Bailey's testimony regarding England's character for truthfulness and sexual morality. During voir dire, Bailey testified that she had known England for five years, that she frequently had contact with him, that she observed him numerous times around children, and that England had a good reputation in the community for truthfulness and sexual morality. She stated that she had not seen anything `inappropriate or unacceptable.' 3 RP at 230. But on cross-examination, she admitted that she had never discussed England's reputation for truthfulness and sexual morality with anyone. She asserted that if something about England was going around the community, she would have heard about it because people talk to her. Essentially, because she had not heard anything negative about England, she assumed that there was nothing negative to be known.
Bailey's answers reveal that her good opinion of England was based on her assumption that if England's reputation was bad, she would have known. Her opinion was not based on knowledge that England's reputation was good.4 Contrary to England's argument, the evidence does not establish a proper foundation for the admission of Bailey's proposed testimony regarding England's reputation for truthfulness and sexual morality. We agree with the trial court that Bailey personally knew and observed England and had strong opinions about him. But because Bailey had never discussed England's reputation for truth and veracity and sexual morality and decency, the foundation was not laid to allow the trial court to admit her testimony regarding England's reputation in the community for these character traits.
England maintains that he not only laid the proper foundation for his brother, David England, to testify regarding England's reputation for truthfulness and veracity, but also for his testimony regarding England's reputation for sexual morality. Thus, England argues that the court abused its discretion when it refused to allow David England to testify to England's reputation for sexual morality. Again, we disagree.
When asked during voir dire about whether he was familiar with England's reputation for sexual morality and decency, David England replied, `I don't — he's just a good — good person.' 3 RP at 237. David England went on to say that he had spoken with people about his brother's reputation for sexual morality and decency, he had observed England around children, and his behavior was that of a role model and a good uncle to his nephew. On cross-examination, however, David England admitted that he had not talked to anyone about England's sexual morality and decency specifically.
Thus, because David England had not talked to anyone in the community about England's reputation for sexual morality and decency, he could not testify to England's reputation in the community for those character traits, and the trial court did not abuse its discretion in excluding David England's testimony on that issue for lack of foundation.
Franks is England's stepdaughter. England maintains that he laid the proper foundation for Franks's testimony regarding his reputation for truthfulness and veracity and sexual morality and decency. Again, we disagree.
During voir dire, Franks testified that England had a good reputation for truth and veracity and that people trusted him. Franks also stated that she had talked with her friends and family about it. But on cross-examination, Franks admitted that she had not specifically discussed England's truthfulness with others, but she...
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