State v. Thach

• Decision Date: 19 January 2005
• Docket Number: No. 30757-0-II.,30757-0-II.
• Citation: 106 P.3d 782,126 Wash. App. 297,126 Wn. App. 297
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Binh THACH, Appellant.

106 P.3d 782

126 Wn. App. 297

126 Wash. App. 297

STATE of Washington, Respondent, v. Binh THACH, Appellant.

No. 30757-0-II.

Court of Appeals of Washington, Division 2.

January 19, 2005.

Publication Ordered February 15, 2005.

Kevin John McClure, City Attorney's Office, Vancouver, WA, for Respondent.

David Schultz, Attorney at Law, Camas, WA, for Appellant.

BRIDGEWATER, J.

Binh Thach appeals his conviction of second degree assault — domestic violence. We affirm.

On January 24, 2003, Renee Thach planned to drop off some paperwork at the unemployment office for training benefits. She had been out of work since September 2002. After taking her shower, she proceeded to apply her makeup.

Binh had overheard a conversation Ms. Thach had with a friend regarding her plans for the day and he was upset because she had not shared her plans with him. Ms. Thach sat with her back to Binh. When Binh questioned his wife about her plans for the day, she responded rudely to him. Her comment upset him and Binh shoved his wife's shoulder with his hand, upsetting her. She started to get up but Binh pushed her away and knocked her into the wall.

Binh and his wife proceeded to argue. Ms. Thach attempted to push him aside so she could finish getting dressed. But when she pushed him, he pushed back and she fell to the ground, losing her towel.

The two continued to argue and Ms. Thach grabbed Binh's shoulders and tried to push him out of her way. At the same time, Binh attempted to move Ms. Thach by her shoulders. The two began to wrestle. Ms. Thach asked Binh to allow her to get dressed and he released her.

Once she finished getting dressed, Ms. Thach went to her sock drawer to get a pair of socks. When Ms. Thach opened her sock drawer and began to put on her socks, Binh became upset. He asked his wife if she intended to go somewhere and she replied that she intended to leave the apartment because she did not want to deal with him anymore.

She got up and again pushed Binh out of the way so she could get her other sock. This made Binh more upset and the two renewed their wrestling match. Ms. Thach stood up and grabbed her husband's thigh to push him out of the way. Binh shoved his wife's arms away. Ms. Thach stood up and pushed her husband.

Ms. Thach ended up on the ground with her husband on top of her. She attempted to kick him in the groin and pinch him. Binh tried to gain control of Ms. Thach's kicking and he held onto her leg. This caused Ms. Thach to pull her hamstring. She screamed when she pulled her hamstring and Binh backed off. Ms. Thach then ran out of the apartment.

Ms. Thach went to the apartment leasing office. Amanda Guderjahn, the apartment manager, and her assistant were in the leasing office. Ms. Thach walked into the leasing office, crying hysterically, and fell to the floor. She had on a t-shirt, jeans, and one sock but no shoes. Ms. Thach asked that someone call 911. After Guderjahn's assistant placed the 911 call, Binh entered the office with the couple's two daughters. He left his daughters with their mother and left the office. After Binh departed, Ms. Thach told Guderjahn what had happened.

Officer Neal Martin of the Vancouver Police Department responded to the 911 call. When he arrived, Ms. Thach came out of the office limping. Officer Martin learned that Binh had already left the complex. Based on the information he received from Ms. Thach and her appearance, Officer Martin radioed to other units to be looking out for Binh's vehicle. The officer then took a more in-depth statement from Ms. Thach.

Ms. Thach told the officer that she had been in an argument with her husband and that the argument had escalated into an assault. She told the officer that during the argument her husband pushed her into a wall and threw her on the ground. After he allowed her to get dressed, he pushed her into a filing cabinet; strangled, punched, and kicked her; and stepped on her face to hold her down while she was on the ground. Ms. Thach also told Officer Martin that Binh had grabbed her leg and pushed it over her head causing her pain.

Officer Martin called an ambulance. While Ms. Thach received medical care, Officer Martin had her fill out a Smith affidavit or domestic violence victim statement. Ms. Thach filled out the first page of the form but Officer Martin filled out the second page because she was receiving medical care. Ms. Thach signed the statement. The domestic violence form contained a statement saying that the victim "certi[fied] or declare[d], under penalty of perjury under the laws of the State of Washington, that the foregoing is true and correct." Ex. 6.

Officer James Azinger located Binh and stopped his vehicle. Officer Azinger approached the car and before he said anything to him, Binh asked whether his being pulled over had something to do with his wife. Officer Azinger asked Binh to step out of the car, arrested him, placed him in the back of the patrol car, and read him his Miranda warnings.¹ Binh chose to speak with Officer Azinger and told him, "I just lost it this time." 2 Report of Proceedings (RP) (Jun. 17, 2003) at 149.

Binh admitted pushing his wife with an open hand to get her to turn around and talk to him. He further stated that his wife fell down on the ground and became angry and that they wrestled on the ground and he tried to gain control of her. Binh was on top while his wife laid face up on the ground. He had his legs straddled over his wife's stomach and he held down her arms.

The State charged Binh with second degree assault — domestic violence and unlawful imprisonment — domestic violence. At trial, the State called Ms. Thach. She stated that she and Binh had been married five years at the time of the assault and that she had been with him since she was 15. Ms. Thach's testimony about the assault was similar to the statement she gave to the police except she testified that Binh had never abused her in the past. The State asked Ms. Thach to identify her written statement. Ms. Thach admitted that she recognized her written statement, that the statement contained her handwriting, that she wrote the statement while in the ambulance, and that she signed the statement under penalty of perjury. The State then sought to admit Ms. Thach's written statement. After some discussion by the parties, the court admitted Ms. Thach's written statement as substantive evidence, but the court also allowed the State to use it to impeach her to the extent that she now asserted Binh had never abused her in the past.

The State then had Ms. Thach read portions of her victim statement where she wrote of other past acts. Ms. Thach tried to explain the discrepancies between her testimony and her statement by stating that she over-exaggerated in her victim's statement.

The State also called Dr. Anita Demlow, Ms. Thach's treating physician, to testify. Dr. Demlow examined Ms. Thach in the emergency room on January 24. She stated that Ms. Thach told her she had been assaulted. Ms. Thach explained to the doctor the events of that day. The State asked, "[w]ere you able to provide a clinical impression or diagnosis of what happened or — as far as what — not what happened as the facts, but — ... what happened to the patient and her injuries and her body?" 1 RP (Jun. 16, 2003) at 32. Dr. Demlow responded that it appeared to her after the examination that what happened to Ms. Thach was true. She also stated that Ms. Thach's examination was consistent with the story she told Dr. Demlow. Binh did not object to the State's question or the answer.

During Officer Martin's testimony, the State asked him whether Ms. Thach appeared angry or vindictive after the assault. Officer Martin responded, "[n]o." 1 RP at 123. Binh did not object to this question or the answer. The State also asked Officer Martin why he had domestic violence victims fill out a written form. The officer explained that studies showed that victims of domestic violence often changed their minds after the abusive episode concluded. The written statement was taken in case the victim later changed his or her statement. Binh did not object to this question or answer.

Officer Martin also testified that he helped Ms. Thach fill out part of her victim's statement. While Ms. Thach received medical care, the officer asked her questions and wrote down her responses. Officer Martin then witnessed Ms. Thach sign the statement.

Binh attempted to introduce the testimony of Song Thach, his sister, as a character witness regarding his peaceful nature. The court found that Binh's family community would not establish his reputation in the community at large. The court denied Binh's offer of character evidence because he was unable to establish the appropriate foundation. During closing arguments, the prosecutor argued that prior incidents of abuse against Ms. Thach were possible reasons why she attempted to minimize the assault when she testified. In its rebuttal argument, the State also responded to Binh's argument of blaming Ms. Thach for her injuries by pointing out to the jury that he failed to take responsibility for his actions.

At the end of trial, the jury convicted Binh of second degree assault — domestic violence. The jury did not find Binh guilty of unlawful imprisonment — domestic violence. The court sentenced Binh within the standard range.

After the trial, Binh moved for a new trial under CrR 7.5(a)(3) based on newly discovered evidence. He based the motion on the affidavit of Bette Jo Claycamp, Binh's mother-in-law, who explained that Ms. Thach suffered from bipolar disorder. At the time of trial, Ms. Thach was not under treatment for her medical condition. Binh argued that Ms. Thach's mental state at the time of the assault was relevant to her credibility at trial. Binh further argued that since the trial revolved around Ms. Thach's credibility, the newly discovered evidence likely would have changed the trial outcome. The trial court...