State v. Suong

Decision Date30 December 2014
Docket Number44580-8-II
PartiesSTATE OF WASHINGTON, Respondent, v. SOKHA SUONG, Appellant.
CourtWashington Court of Appeals

UNPUBLISHED OPINION

Worswick, P.J.

Sokha Suong appeals his convictions for one count each of unlawtul imprisonment, first degree burglary, second degree assault felony harassment, and ten misdemeanor counts of violating a domestic violence court order. He argues that the trial court erred by (1) refusing to sever the first group of charges from the domestic violence court order violations, (2) excluding a potential defense witness from the courtroom, and (3) giving "to-convict" instructions that failed to include every element of the domestic violence court order violation charges. We find no error and affirm.

FACTS
A. Unlawful Imprisonment, Burglary, Assault, and Felony Harassment

Jasmine Bogle worked overnight as a licensed practical nurse at the house of her client. One night, her ex-boyfriend, Sokha Suong, came to her workplace, asking if the two could resume their relationship. She refused and asked him to leave. When she later found him standing outside the house, she again asked him to leave. A few hours later, Suong knocked on the door and Bogle answered. Suong "got his foot in the doorway, put [Bogle] in ... a chokehold, and started dragging [her] to the kitchen." 2 Verbatim Report of Proceedings (VRP) at 159. Bogle could not breathe. In the kitchen, Suong began opening kitchen drawers. He grabbed a pair of scissors held them to Bogle's throat, and said, "Bitch, if you don't do exactly what I fucking tell you to do, I'm going to fucking stab you." 2 VRP at 167. Bogle felt her life was threatened. Suong was charged in an amended information with one count each of first degree kidnapping, first degree burglary, second degree assault, and felony harassment.[1] Each of these charges bore a domestic violence sentencing aggravator.

B. No Contact Orders

The trial court issued two orders restricting Suong from contacting Bogle. It issued an order for protection[2] and it also issued a domestic violence no contact order.[3] Despite these orders, Suong continued to contact Bogle. On August 23, Bogle received a collect call from someone identifying himself as Suong in Suong's own voice. Bogle did not accept the call. Her cell phone displayed a total of seven phone calls received from the same collect number. Police obtained a record of Suong's phone call history from Clark County Jail; it showed 17 outgoing phone calls to Bogle's phone number. When confronted with this information, Suong initially denied that the phone number he had tried to reach was Bogle's, but upon seeing the call log, he admitted that he had tried calling Bogle because "I just can't help it, I need to talk to her. I love her and all that she said happened was a lie." Clerk's Papers (CP) at 7.

Suong also wrote 17 letters and postcards to Bogle on different dates between August 23 and October 11. Bogle identified Suong's handwriting on the letters. Some of the letters were addressed to Bogle's residence but addressed to another woman's name-a woman who had never lived at Bogle's residence or received mail there. The letters were of a romantic nature apparently unrelated to the assault incident or the charges.

Consequently, the State charged Suong in an amended information with 10 misdemeanor counts of domestic violence court order violation.[4] The first count was based on the phone calls on August 23, and the remaining counts were based on the letters written to Bogle. Suong asserted no affirmative defenses; instead, he asserted a general denial to all charges.

C. Motion To Sever

Suong moved to sever the misdemeanor domestic violence court order violation charges from the felony charges, arguing that it would be prejudicial to present the evidence of these crimes together.

At a hearing on the motion, the State represented to the trial court that the letters were romantic, not threatening, and the letters did not reference the assault incident. The State argued that the letters were admissible to show Suong's disposition towards this victim and a motivation for all the crimes. The State argued that the letters would help prove the essential element of the domestic violence aggravators that Bogle and Suong were in a relationship. The State also argued that some witnesses would be called to both trials if the charges were severed.

The trial court remarked that "the evidence in [the domestic violence court order violations] does not appear to me to be necessarily admissible" with regard to the four felony counts. 1 VRP at 58. The court also said, however, that the domestic violence court order violation evidence "bears some slight probative value with regard to whether [Bogle and Suong] had a previous relationship, " which would help the jury determine whether they were household members for the domestic violence sentencing aggravators on the felony charges. 1 VRP at 59. The court noted that evidence of the attack would be inadmissible in a trial on the no-contact order violations alone. The court summarized that cross-admissibility of evidence on the felony and misdemeanor charges was "limited." 1 VRP at 60.

Next, the court observed that Suong had no special defenses to any of the charges. The court denied the motion to sever, ruling that the "factors outlined in State v. Russell, 125 Wn.2d 24, 62-3, 882 P.2d 747, 772-3 (1994), State v. Lough, 125 Wn.2d 847, 852, 889 P.2d 487, 494 (1995), and the need for judicial economy weigh in favor of joining all counts in one trial." CP at 66-67. The court instructed the jury in a limiting instruction to consider each count separately.

D. Exclusion of Potential Witness

At trial, the State noticed that the defense investigator, Mr. Morrow, was present in the courtroom. The State suggested that Morrow was a potential defense witness, although his name did not appear on the witness list. The State moved to exclude Morrow from the courtroom because the trial court had excluded all witnesses. Suong insisted that he did not yet expect to call Morrow as a witness, but might do so in rebuttal. Suong argued that Morrow's presence assisted with the proceeding "as far as getting relevant pages of transcripts, etcetera, in anticipation of cross-examination." 2 VRP at 144. The trial court excluded Morrow, finding that Suong could not commit to not calling Morrow for rebuttal testimony, and had not shown that Morrow's presence was necessary. Morrow left the courtroom.

E. Jury Instructions

On each count of domestic violence court order violation, the trial court instructed the jury that:

To convict the defendant of the crime of Violation of a Court Order... each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about [pertinent date], there existed a no-contact order applicable to the defendant;
(2) That the defendant knew of the existence of this order;
(3) That on or about said date, the defendant knowingly violated a restraint provision of the order prohibiting contact with a protected party; and
(4) That the defendant's act occurred in the State of Washington, County of Clark.

CP at 127-36.

The jury instructions further provided: "A person commits the crime of Violation of a Court Order when he or she knows of the existence of a protection order or no-contact order, and knowingly violates restraint provisions of the order prohibiting contact with a protected party."

CPatl25. F. Convictions and Appeal

At trial, the State's evidence supporting the felony charges included testimony from police officers who responded to the scene after Suong attacked Bogle. They testified that Bogle was very upset, that she told them what Suong had done, and that a floor mat was askew. Evidence also included testimony from Bogle's parents, who recalled seeing Bogle very upset after the attack. Bogle testified about the attack, and also testified about receiving phone calls and letters from Suong. In support of the misdemeanor charges, the State also presented testimony from police officers who investigated Suong's mail and phone calls to Bogle. The court admitted Suong's letters and a call log as evidence of his contact with Bogle.

A jury found Suong guilty as charged of first degree burglary, second degree assault, and felony harassment, and also found him guilty of the lesser included offense of unlawful imprisonment, instead of kidnapping. The jury further found that Suong and Bogle were members of the same family or household, so each of these verdicts included a domestic violence sentencing aggravator. The jury also found Suong guilty as charged often counts of misdemeanor domestic violence court order violations. Suong appeals.

ANALYSIS
I. Denial of Motion To Sever Domestic Violence Court Order Violations

Suong argues that the trial court erred by refusing to sever the misdemeanor domestic violence court order violation counts from the felony counts. He argues that (1) the evidence of the underlying felony charges was comparatively weaker than the evidence of the violation of no-contact orders, (2) his defenses were different for the two groups of charges, (3) the trial court's limiting instruction was too vague, and (4) evidence of Suong's violation of the no-contact orders constituted character evidence when considered alongside the felony charges. We hold that the trial court did not abuse its discretion in refusing to sever.

A. Standard of Review

We review a trial court's denial of a motion to sever for manifest abuse of discretion. State v. Bryant, 89 Wn.App. 857, 864, 950 P.2d 1004 (1998). The trial court abuses its discretion if its decision is manifestly unreasonable or based upon untenable grounds or reasons....

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