State v. O'Haver

• Court: Washington Court of Appeals
• Writing for the Court: TRICKEY
• Decision Date: 07 July 2014
• Docket Number: No. 71669-7-I,71669-7-I
• Citation: State v. O'Haver, No. 71669-7-I (Wash. App. Jul 07, 2014)
• Parties: STATE OF WASHINGTON, Respondent, v. TIMOTHY GREG O'HAVER, Appellant.

STATE OF WASHINGTON, Respondent, v. TIMOTHY GREG O'HAVER, Appellant.

No. 71669-7-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: July 7, 2014

UNPUBLISHED OPINION

TRICKEY, J. — The exclusion of irrelevant evidence does not bar an accused from the constitutional right to present a defense. Here, the trial court instructed the jury on self-defense and permitted the defendant to present evidence of the circumstances surrounding the incident to support his theory of self-defense. The trial court did not err in its evidentiary rulings or in its refusal to grant a new trial. Accordingly, we affirm.

FACTS

Timothy O'Haver came home from work. He and his wife consumed several drinks of vodka and juice. After a couple of hours, they began arguing.¹ During the argument, O'Haver grabbed his wife and sprayed her with the hose from the kitchen sink. She slipped on the water and fell to the floor.² The wife ran out of the house.

The neighbor next door, and his friends John Hoover and John Humen, witnessed O'Haver chasing his wife outside. The wife either fell or O'Haver pushed her down.³ O'Haver then struck his wife, although the accounts varied whether hedid so with an open hand or a fist.⁴ O'Haver grabbed his wife and went back into their home, closing the door.⁵

The three continued to hear screaming coming from the O'Haver house. The neighbor entered the house through a back door.⁶ The neighbor testified that he distracted O'Haver by insulting him in an attempt to get O'Haver to focus on him so that the wife could escape.⁷ The wife left and O'Haver pushed the neighbor. When O'Haver grabbed a gun, the neighbor fled to his house with O'Haver running behind him.⁸

The neighbor called for his wife to get the "old lady," a term used by the neighbors for their gun in the event of an emergency.⁹ The neighbor's wife retrieved the gun and gave it to her husband.¹⁰ O'Haver testified that he was aware of the neighbors' code for their gun and that he feared for his wife's safety. The wife told O'Haver that she was in the house on her own free will and told him to go home and sleep it off.¹¹

O'Haver banged on the neighbor's front door with a baseball bat trying to get inside. In the process, he broke the door. O'Haver also attempted to enter through windows around the house while shouting for his wife.¹² O'Haver testified that he ran back to his house to retrieve his guns¹³ when the neighbor threatenedto shoot him through the door. O'Haver reached through the broken front door hitting the neighbor with his gun.¹⁴

The police arrived at the scene. Both parties dropped their weapons. The police arrested O'Haver. The State introduced evidence of the neighbor's broken door and the broken baseball bat.

The State charged O'Haver with four counts of assault, but a jury found him guilty of only two: second degree assault of the neighbor and a lesser included count of fourth degree assault of the wife. O'Haver appeals alleging multiple evidentiary errors.

ANALYSIS

Exclusion of Evidence

O'Haver contends that the trial court violated his constitutional right to present a defense when it excluded evidence that both his neighbor and his wife had committed prior acts of violence. He argues that this evidence corroborated his account that he feared both of them and was therefore acting in self-defense.

Both the Sixth Amendment of the federal constitution and article I, section 22 of the Washington Constitution guarantee an accused the right to present a defense. State v. Jones, 168 Wn.2d 713, 230 P.3d 576 (2010). However, this right is not absolute; a defendant does not have the right to introduce evidence that is irrelevant or otherwise inadmissible. State v. Stacy, ___ Wn. App. ___, 326 P.3d 136, 143 (2014) (citing State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992)). "Evidence is relevant if it has any tendency to make any fact that is ofconsequence to the case more or less likely than without the evidence." State v. Mee Hui Kim, 134 Wn. App. 27, 41, 139 P.2d 354 (2006) (citing State v. Thomas, 150 Wn.2d 821, 857, 83 P.3d 970 (2004); ER 401).

In general, evidence of a person's character is inadmissible to prove "conformity therewith on a particular occasion." ER 404(a). However, an exception to this rule provides that "[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused" is admissible. ER 404(a)(2). Thus, where a defendant asserts self-defense, evidence of the victim's violent disposition is a pertinent character trait because it is relevant to the question of whether the victim acted in conformity with his or her character by provoking the incident as the first aggressor. State v. Alexander, 52 Wn. App. 897, 900, 765 P.2d 321 (1988); United States v. Keiser, 57 F.3d 847, 853-54 (9th Cir. 1995). Evidence offered for this purpose is subject to the restrictions set forth in ER 404 and 405. Only the victim's reputation for violence is admissible; specific acts of violence are not. ER 405(a), (b); Alexander, 52 Wn. App at 901. O'Haver did not seek a first aggressor instruction and none was given.

Evidence regarding the victim's violent character may also be relevant to show the defendant's state of mind; in other words, the reasonableness of his or her belief that the use of force was necessary in self-defense. State v. Dyson, 90 Wn. App. 433, 438-39, 952 P.2d 1097 (1997) ("To establish self-defense, a defendant must produce evidence showing that he or she had a good faith belief in the necessity of force and that that belief was objectively reasonable."). Under those circumstances, because the character evidence is used to show state ofmind rather than to show the victim acted in "conformity therewith," the restrictions of ER 404 and 405 do not apply. Keiser, 57 F.3d at 853. Evidence of specific acts is admissible provided the defendant was aware of the acts at the time. State v. Walker, 13 Wn. App. 545, 549-50, 536 P.2d 657 (1975).

At trial, the State objected to O'Haver's testimony that his wife had struck him during a prior incident in 2007.¹⁵ O'Haver submitted an offer of proof that the incident with his wife occurred during a stressful time while the parties were in the midst of a foreclosure. Alcohol also played a part in that incident. O'Haver woke up the next morning with a red eye.¹⁶ Because the 2007 incident was supported only by O'Haver's testimony, with no independent witnesses, no history of restraining orders or domestic violence orders entered against either party and occurred over five years ago, with no charges filed, the court found the evidence remote, unreliable, and insufficient to establish a claim of self-defense for this particular incident.¹⁷

O'Haver then argues that the trial court erred in preventing him from testifying about his wife being fired from her crossing-guard job because she allegedly smashed a window of a car whose driver failed to follow her directions.¹⁸ He argues that the evidence was admissible under ER 404(b) to show her quarrelsomeness¹⁹ and thus her propensity for violence.²⁰ Because O'Haver wasnot the object of that incident, the court found the evidence irrelevant and prejudicial.²¹ The court did not err in finding the evidence inadmissible.

O'Haver also related, in his offer of proof, testimonial evidence of various scenarios demonstrating the neighbor's propensity to become violent. O'Haver related two instances in which the neighbor illegally discharged a gun in the neighborhood.²² O'Haver did not witness either incident.²³ The neighbor also told O'Haver that he had killed a man but did not supply any specific details; however, O'Haver admitted that he did not fully believe it to be true.²⁴ O'Haver next asserted that his neighbor described himself as having an inability to control himself when aroused by the sight of blood.²⁵ This "blood lust" allegedly caused the neighbor to viciously beat another person.

The court found the statements unreliable and not supportive of a claim of self-defense. O'Haver also related an incident in which the neighbor had a reaction with the medication he was taking that caused him to become violent with his spouse one night.²⁶ No expert testimony was presented or offered to substantiate the claim that the neighbor's medication caused him to be violent. Finding that O'Haver had not established a foundation, the court ruled the evidence inadmissible. The court specifically stated that its ruling did not limit O'Haver fromtestifying regarding any apprehension or fear that he experienced at the time of the incident to support his self-defense argument.²⁷

Defense counsel filed a motion for reconsideration regarding the court's denial. After hearing oral argument, the court reiterated its ruling with regard to the acts of the wife, that the 2007 incident was remote, and that the allegation that she broke a car windshield did not establish a reputation for violence in the community.²⁸

With regard to the allegations of the neighbor's violent persona, the court found no indicia of reliability that could create a subjective intent on the part of O'Haver to create apprehension and fear. This was particularly true, here, where O'Haver testified that he returned to his home to retrieve his pistol and shotgun. Additionally, O'Haver's alleged fear for his wife is contradicted by the testimony that the wife said she was there on her own free will and that she clung to the neighbor's spouse. Under these facts, the trial court properly found no corroborating circumstances existed to show that these past instances would support O'Haver's theory that his wife was abducted.

O'Haver's reliance on State v. Wanrow, 88 Wn.2d 221, 224, 559 P.2d 548 (1977) for support that the evidence should have been admitted here is misplaced. The court in Wanrow involved instructional error where the jury was misadvised as to the particular circumstances it could consider in reaching a decision. As stated in State v. Martin, 169 Wn. App....