State v. Johnson

• Decision Date: 03 December 2012
• Docket Number: No. 66624–0–I.,66624–0–I.
• Citation: 289 P.3d 662
• Parties: STATE of Washington, Respondent, v. J.C. JOHNSON, Appellant.
• Court: Washington Court of Appeals

289 P.3d 662

STATE of Washington, Respondent,

v.J.C. JOHNSON, Appellant.

No. 66624–0–I.

Court of Appeals of Washington, Division 1.

Dec. 3, 2012.

Nielsen Broman Koch PLLC, Attorney at Law, Casey Grannis, Nielsen Broman & Koch, PLLC, Seattle, WA, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, Jeffrey C. Dernbach, King County Courthouse, Seattle, WA, for Respondent.

COX

, J.

¶ 1 J.C. Johnson appeals his judgment and sentence of life without the possibility of parole as a persistent offender following his conviction of three counts of second degree assault. He was sentenced to a concurrent 60 months term for his unlawful imprisonment conviction. The court also imposed sentencing enhancements for certain convictions.

¶ 2 We hold that the trial court properly admitted under ER 404(b)

evidence regarding Johnson's acts of domestic violence toward the victim that occurred prior to the charging period. Johnson's challenge to a jury instruction was not preserved for appeal. And he fails to demonstrate that his trial counsel performed deficiently by proposing that instruction at trial. The information charging unlawful imprisonment is deficient, and we dismiss that conviction without prejudice as the proper remedy. The remaining matters raised on appeal do not require relief. We affirm.

¶ 3 J.C. Johnson and J.J. married in 2007 after what she described as a “whirlwind” romance. J.J. testified at trial that after six months into their relationship, it began to worsen. She testified that she began to wake up to find Johnson sitting on her chest and choking her in bed. The frequency of the strangulations increased. Johnson also began hitting her, pulling her hair, and hitting her with rocks.

¶ 4 J.J. testified that during the three-day charging period, May 4 to 6, 2009, Johnson held her in their apartment while he physically abused and threatened her. J.J. further testified that on the last day of the charging period, she was able to escape to a neighbor's house to call the police.

¶ 5 The State charged Johnson with five criminal acts (in five separate counts): second degree assault by strangulation (count I); second degree assault by intentionally assaulting another and recklessly inflicting substantial bodily harm (count II), second degree assault with a deadly weapon (count III), felony harassment (count IV), and unlawful imprisonment (count V). The State also alleged that Johnson used a deadly weapon for counts III and IV for purposes of deadly weapon enhancements. It also alleged aggravating factors: that the crimes were committed with deliberate cruelty and there was a pattern of domestic abuse.

¶ 6 A jury convicted Johnson of all charges as well as the deadly weapon allegations. For the deadly weapon allegation for felony harassment, the jury returned a special interrogatory that indicated that the deadly weapon used was a “knife” instead of “duct tape,” as charged. The jury found the aggravating factor of a pattern of domestic violence but not deliberate cruelty.

¶ 7 The court vacated the felony harassment conviction on double jeopardy grounds. The related enhancement was not imposed.

¶ 8 The court sentenced Johnson to life without the possibility of parole as a persistent offender for the three counts of assault in the second degree, each of which is a most serious offense. The court also imposed a concurrent sentence of 60 months confinement for the unlawful imprisonment conviction.

¶ 9 Johnson appeals.

404(b) EVIDENCE

¶ 10 Johnson argues that the trial court abused its discretion in admitting testimony about his prior misconduct. We hold that the trial court properly exercised its discretion by admitting the evidence.

[1]

[2]

[3]

¶ 11 This court reviews a trial court's ruling on the admissibility of evidence for an abuse of discretion.^FN1 A trial court abuses its discretion if it acts on untenable grounds or for untenable reasons. ^FN2 “Failure to adhere to the requirements of an evidentiary rule can be considered an abuse of discretion.” ^FN3

¶ 12 Under Evidence Rule (ER) 404(b)

, a court is prohibited from admitting “[e]vidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith.” But such evidence is admissible for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” ^FN4

[4]

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¶ 13 Prior to admitting ER 404(b) evidence, a trial court must:

(1) find by a preponderance of the evidence that the misconduct occurred, (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.^[[^FN5

]The trial court must conduct this analysis on the record.^FN6

If the evidence is admitted, the trial court must give a limiting instruction to the jury.^FN7

State of Mind

[6]

¶ 14 Johnson argues that evidence regarding his prior controlling and domineering behavior was not relevant to prove any element of any charged crime. We disagree.

¶ 15 A person is guilty of felony harassment if he or she knowingly threatens to “cause bodily injury immediately or in the future to the person threatened or to any other person.” ^FN8

Additionally, felony harassment occurs where “[t]he person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.” ^FN9 Whether the threat created a “reasonable fear” is an essential element of the crime of felony harassment.^FN10 Washington courts allow evidence of prior misconduct to show that the victim's fear was reasonable.^FN11 The jury must be able to “consider the defendant's conduct in context and [ ] sift out idle threats from threats that warrant the mobilization of penal sanctions.” ^FN12

¶ 16 Here, the State charged Johnson with felony harassment for threatening to kill or cause J.J. bodily injury with duct tape. The trial court admitted testimony of the defendant's prior controlling and domineering behavior, including testimony that Johnson isolated J.J. from others, monitored her conversations, and accused her of infidelity. J.J. testified that Johnson threatened to put duct tape on her hands, feet, mouth, and nose if she did not tell him “who [she] was sleeping with.” This evidence shows that J.J.'s fear regarding Johnson's threats was reasonable, and thus established an element of felony harassment.

[7]

¶ 17 The State also charged Johnson with three counts of second degree assault. A person is guilty of second degree assault if he or she “[a]ssaults another with a deadly weapon.” ^FN13 In State v. Magers, the supreme court, in a plurality decision, affirmed the trial court's admission of the defendant's prior misconduct.^FN14 The trial court admitted the evidence for an assault charge because “reasonable fear of bodily injury” was at issue.^FN15 The court pointed to the jury instructions to conclude that the defendant's prior misconduct was “necessary to prove a material issue.” ^FN16 Thus, the victim's state of mind was a necessary element that the State was required to prove in that case.

¶ 18 Here, as in Magers,

J.J.'s “fear of bodily injury”—her state of mind—was also at issue. Thus, evidence of Johnson's prior bad acts was admissible to prove J.J.'s state of mind, a necessary element for the assault charge (count III).

¶ 19 It is noteworthy that Jury Instruction 7 was the limiting instruction that the court gave to the jury that memorialized both the basis for admission of the evidence of prior misconduct and how the jury should use the evidence:

Certain evidence has been admitted in this case for only a limited purpose. This evidence consists of testimony regarding alleged acts of domestic violence committed by the defendant against [J.J.] prior to May 4, 2009. This evidence may be considered by you only for the purposes of assessing [J.J.'s] state of mind with respect to counts II I, IV and V, and if you find the defendant guilty of any of the charged offenses or the lesser included offense of Assault in the Third Degree on count II. You may not consider it for any other purpose. Any discussion of the evidence during your deliberations must be consistent with this limitation.^FN17[

]Moreover, Jury Instruction 8 provided:

An assault is also an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.^[[^FN18

]Likewise, Jury Instruction 28 provided:

To convict the defendant of the crime of felony harassment as charged in Count IV, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That during the time intervening between May 4, 2009 and May 6, 2009, the defendant knowingly threatened to kill [J.J.] immediately or in the future;

(2) That the words or conduct of the defendant placed [J.J.] in reasonable fear that the threat to kill would be carried out;

(3) That the defendant acted without lawful authority; and (4) That the threat was made or received in the State of Washington.^[[^FN19

]¶ 20 These instructions show that the purpose of the admission of the prior misconduct evidence was for the state of mind of the victim. And we presume the jury follows the court's instructions.^FN20

Thus, this evidence was necessary for the State to prove elements for both the assault charge and the felony harassment charge. The trial court properly exercised its discretion under controlling case law.

¶ 21 The State also argues that intimidation, as an element of unlawful imprisonment, required the State to prove J.J.'s state of mind. Johnson does not challenge the admission of the evidence on that basis.

¶ 22 Johnson points to the concurrence of two justices to the lead opinion in Magers

to challenge the...