State v. Traini

• Decision Date: 09 November 2020
• Docket Number: No. 79919-3-I,79919-3-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. PHILIP KEITH TRAINI, Appellant.

STATE OF WASHINGTON, Respondent, v. PHILIP KEITH TRAINI, Appellant.

No. 79919-3-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

November 9, 2020

UNPUBLISHED OPINION

CHUN, J. — Two no-contact orders (NCOs) prohibited Philip Traini from going near his former girlfriend's residence or having any contact with her.He violated those orders by going to her home and grabbing her face.A jury found Traini guilty of misdemeanor violation of an NCO and felony assault in violation of an NCO.Traini appeals.

As the State concedes, the convictions together violate the double jeopardy clause.But the trial court did not abuse its discretion in admitting the victim's written statement as a recorded recollection.Nor does Traini establish that any prosecutorial misconduct was prejudicial.We thus vacate the misdemeanor conviction and affirm the felony conviction.

BACKGROUND

K.S. is Traini's former girlfriend.Two NCOs prohibited Traini from going within 1,000 feet of K.S.'s residence or having any contact with her.On February 2, 2019, Traini went to K.S.'s home and grabbed her face.In a statement, K.S. said that because of an abscessed tooth, she experienced much pain.K.S. then left her home, called 911, and walked to retrieve her car, which was parked nearby.During the 911 call, K.S. cried and stated that Traini had attacked her.She also stated that she did not feel comfortable waiting on the street for an officer to arrive.Officer Joshua Holt met K.S. at her home and interviewed her.He then accompanied her to the police station so he could have her complete a written statement.He testified at trial that he did this based on K.S.'s tendency to fail to complete written statements in the past, despite agreeing to do so.Officer Holt had responded before to a number of 911 calls from K.S. about Traini.

The State charged Traini with burglary in the first degree, felony assault in violation of an NCO, obstructing a law enforcement officer, residential burglary, and misdemeanor violation of an NCO.

At the start of trial, K.S. moved to rescind the NCOs.She told the court that she"didn't ever feel in danger or in fear of Mr. Traini."She appeared to express that she was unhappy that the State was prosecuting Traini.The trial court denied her motion.

Later, during trial, the trial court admitted the 911 call into evidence.K.S. testified that Traini had simply grabbed her jaw while he was at her home and that he had not hurt her.She also testified that she was not "attacked" and that she was surprised she had said she was uncomfortable on the street in the 911 call.She testified that she had been exaggerating during the call.Over Traini'sobjection, under ER803(a)(5), the trial court allowed K.S.'s written statement to be read into evidence.

Officer Holt testified about his impression of K.S. on the date of the incident.He said that when he interviewed K.S., she started to cry, which he found unusual based on his prior interactions with her.

The jury found Traini guilty of misdemeanor violation of an NCO and felony assault in violation of an NCO and not guilty on the remaining charges.

ANALYSIS

A.Double Jeopardy

Traini says that his convictions for misdemeanor violation of an NCO and felony assault in violation of an NCO violate double jeopardy protections because they are both based on the same unit of conduct: his presence at K.S.'s home on February 2, 2019.We accept the State's concession on this issue.

Federal and state constitutional double jeopardy protections prevent multiple punishments for the same offense.State v. Muhammad, 194 Wn.2d 577, 616, 451 P.3d 1060(2019);CONST. art. I, § 9;U.S. CONST. amend V.We consider the violation of an NCO as one continuous crime while the defendant remains in the prohibited zone.State v. Spencer, 128 Wn. App. 132, 137-38, 114 P.3d 1222(2005).Without a clear legislative intent to permit punishment of multiple offenses, if a jury convicts a defendant on greater and lesser-included offenses, the lesser offense merges into the greater and must be vacated on remand.State v. Turner, 169 Wn.2d 448, 459, 238 P.3d 461(2010);In re Pers.Restraint of Strandy, 171 Wn.2d 817, 819-20, 256 P.3d 1159(2011).The double jeopardy issue here presents a question of law, which we review de novo.Muhammad, 194 Wn.2d at 600.

Traini was convicted under RCW 26.50.110 of misdemeanor violation of an NCO and felony assault in violation of an NCO.RCW 26.50.110(1)(a) states: "a violation of any of the following provisions of the order is a gross misdemeanor, except as provided in subsection[](4) . . . (ii) A provision excluding the person from a residence."(Emphasis added.)RCW 26.50.110(4) provides, "Any assault that is a violation of an order issued under this chapter . . . is a class C felony.""The plain and unambiguous language of RCW 26.50.110 establishes misdemeanor violation of a no-contact order is a lesser included offense of felony violation of a no-contact order."State v. Melland, 9 Wn. App. 2d 786, 814, 452 P.3d 562(2019).Double jeopardy protections prohibit two separate convictions when one crime is a lesser offense of the other.In re Pers. Restraint of Knight, 2020 WL 5949872, at *6-7.Thus, the two convictions together here violate the double jeopardy clause, and we must vacate the lesser offense.

B. K.S.'s Written Statement

Traini says that the trial court erred in allowing K.S.'s handwritten statement to be read into evidence as a recorded recollection under ER803(a)(5) because the State did not establish the accuracy of the prior statement.We conclude that the trial court did not abuse its discretion in doing so.

Evidence may be read into evidence as a recorded recollection under ER803(a)(5) if it is:

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.

When examining whether a statement accurately reflects the witness's prior knowledge, the trial court looks at the totality of the circumstances.In re Det. of Peterson, 197 Wn. App. 722, 727-28, 389 P.3d 780(2017).This includes: "(1) whether the witness disavows accuracy; (2) whether the witness averred accuracy at the time of making the statement; (3) whether the recording process is reliable; and (4) whether other indicia of reliability establish the trustworthiness of the statement."Id.(quotingState v. Alvarado, 89 Wn. App. 543, 552, 949 P.2d 831(1998))."[T]he requirement that a recorded recollection accurately reflect the witness' knowledge may be satisfied without the witness' direct averment of accuracy at trial."Alvarado, 89 Wn. App. at 551.

We review the admission of statements under ER803(a)(5) for abuse of discretion.State v. Derouin, 116 Wn. App. 38, 42, 64 P.3d 35(2003).

Over Traini's objection, the trial court allowed the State to have K.S. read into the record her written statement that she completed on February 2, 2019, as a recorded recollection under ER803(a)(5).It states that Traini grabbed K.S. by the jaw, causing her "intense pain"; pushed her down onto her bed; and said "it would only take a second" to "end" her life.

Because there are sufficient indicia of reliability, the trial court did not abuse its discretion in allowing the statement to be read into evidence.First, the top of the form encouraged accurate reporting: "Please answer the following questions fully and accurately and to the best of your knowledge."Second, K.S. completed the statement herself and Officer Holt was not in the room as she did so.Third, K.S. identified the handwriting as her own.SeePeterson, 197 Wn. App. at 729-30(that the witness testified that the statement was in her handwriting indicated the reliability of the admitted statement).And fourth, the 911 call during which K.S. cried and said Traini attacked her corroborates the statement.SeeState v. White, 152 Wn. App. 173, 186, 215 P.3d 251(2009)(noting that the fact that the witness identified the defendant as her attacker on a 911 call supported the accuracy of the recorded statement).

Traini argues that K.S.'s refusal to sign the written statement constitutes a disavowal of its contents.Officer Holt testified that when he had K.S. fill out the statement, he did not notice that the second page, which included a line for a signature affirming the contents as true and correct, did not print and thus the statement was not signed.When a supervisor brought this to his attention a week later, he went to K.S.'s house and requested she sign her statement.She refused.At trial, she explained that she did not sign it because she"didn't want anything to happen."She also said she did not want to be "held to" the report.While Traini argues that her refusal to sign the statement reflects a disavowal of its accuracy, it could also be interpreted to reflect her desire that the State not filecharges.And no Washington authority holds that the omission of a signature, or a refusal to sign, is determinative as to accuracy.

Traini also argues that because K.S. recanted some of her prior statements at trial and did not want the State to file charges, the trial court abused its discretion in allowing the statement to be read into the record.During trial, the State asked K.S., "[A]t the time you made the statement, you intended to make a truthful statement?"She responded, "Yes."But while questioning K.S. as to why some questions had been left blank,¹ defense counsel asked, "[W]ere you trying to be accurate and truthful when you wrote this?"And she responded, "I suppose not," explaining that she had felt pressured to fill out the form by Officer Holt.But shortly after, outside the presence of the jury, the State asked K.S. whether her intention was to truthfully record what happened,...