State v. Wilhelm

• Decision Date: 13 July 2015
• Docket Number: NO. 70704-3-I,70704-3-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. DAMIAN MACINTOSH WILHELM, Appellant.

STATE OF WASHINGTON, Respondent, v. DAMIAN MACINTOSH WILHELM, Appellant.

NO. 70704-3-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

July 13, 2015

UNPUBLISHED OPINION

LAU, J. — Damian Wilhelm appeals his jury trial conviction for a felony violation of a no-contact order and fourth degree assault involving his girlfriend, Leah Hensel. He challenges the trial court's ER 404(b) admission of his 2011 domestic violence conviction against Hensel, denial of his motion to bifurcate the jury trial, and prosecutorial misconduct in closing argument. Finding no error, we affirm his judgment and sentence.

FACTS¹

The trial evidence shows the following facts: Damian Wilhelm and Leah Hensel started dating in 2011. On the evening of March 10, 2013, Wilhelm and Hensel met Hensel's best friend, Heather Wilmore, for drinks at their Bellevue condominium. Theyjoined a friend, Damian Keitt, at an Auburn bar and continued to drink.² On the way back to the condominium, they decided to stop at a QFC for food and cigarettes. Wilhelm and Hensel went into the store around 3:00 a.m. while Wilmore and Keitt waited in the car. About 30 to 40 minutes later, they went inside to look for Wilhelm and Hensel.

Heather Wilmore

Wilmore testified that after using the QFC restroom, she heard Wilhelm yelling angrily at Hensel, calling her "a slut and dirt and a whore and a hoe." Report of Proceedings (RP) (July 11, 2013) at 80. She heard Hensel crying and asking Wilhelm to "stop." RP (July 11, 2013) at 79-80. Wilmore saw Hensel seated or kneeling on the floor as Wilhelm threw boxes of food and cans at her from the store shelf. Wilmore saw some of the items strike Hensel and Hensel's injured forehead. Wilmore "tried to stop him" and injured her hand from a box or a can thrown by Wilhelm. RP (July 11, 2013) at 81. Wilmore said Keitt "stopped him" when he "grabbed [Wilhelm's] arms from behind him."³ RP (July 11, 2013) at 83. "He was just stopping [Wilhelm] from throwing things." RP (July 11, 2013) at 83. The QFC surveillance video shows that the struggle moved to the front of the store near the cash registers where it eventually stopped. The video shows Wilhelm leaving the store. As the video was played, Wilmore described what took place "beyond the camera shot" that could not be seen in the video. RP (July 11,2013) at 92. Wilmore acknowledged her poor memory and intoxication but testified the assault stuck out in her mind because she was "not normally around stuff like that." RP (July 11, 2013) at 88. She also agreed that she could not say where the injury on Hensel's forehead came from. RP (July 11, 2013) at 108. She maintained that she saw Wilhelm "throwing things" at Hensel "in the middle of the store." RP (July 11, 2013) at 110.

Gary Morrison

QFC store clerk Gary Morrison testified that Wilhelm came into the store sometime after 2:00 a.m. and asked for the alcohol aisle. Morrison said Wilhelm was drunk. After Wilhelm walked away, Morrison heard "some arguing and screaming" in aisle 13. RP (July 11, 2013) at 11-12, 15. He walked to aisle 13 and saw Wilhelm yelling at Hensel. She was on her knees with her head down and crying:

[STATE]: The girl that he was yelling at, was she—which side of the defendant was she on, from your vantage point?

[MORRISON]: He was between me and her, so she was further down—on her knees.

[STATE]: What was he yelling at her?

[MORRISON]: He was calling her dirt and just yelling at her.

[STATE]: What was she doing? What were you able to see of what she was doing?

[MORRISON]: It looked like she just had her head down and was kind of crying, wasn't really saying much.

[STATE]: Okay. What was he[r] position on the ground?

[MORRISON]: On her knees.

RP (July 11, 2013) at 13-14.

Morrison said during the "arguing and screaming" the "other couple [Keitt and Wilmore] came over [to aisle 13] and the arguing got louder." RP (July 11, 2013) at 14-15. The store video shows them running over to aisle 13 from an adjacent aisle.Morrison turned to walk back to the front of the store but returned to the aisle when he heard arguing, screaming, and crashing sounds. He saw Keitt "behind the defendant . . . with his arms around his neck area. . . . [T]rying to subdue [Wilhelm], pull him down. . . . [To] keep [Wilhelm] from fighting. . . . He did hold [Wilhelm] down a little—for a little while." RP (July 11, 2013) at 17. He saw Keitt wrestling with Wilhelm:

[STATE]: Okay. And once you came back to the aisle, aisle 13, what did you see?

[MORRISON]: I saw [Keitt] and him and the—Wilhelm fighting.

[STATE]: Okay. How did they—what were they doing in terms of fighting? How were they fighting? Who was doing what? If you could just take me step by step.

[MORRISON]: Well, [Keitt] kind of grabbed [Wilhelm], was mostly just trying to wrestle. They were wrestling mostly. They were—weren't throwing [p]unches but just mostly wrestling.

RP (July 11, 2013) at 16.

Morrison heard Keitt⁴ yelling at Wilhelm "that he shouldn't hit a girl." RP (July 11, 2013) at 19.

He also testified that while watching the struggle, both Wilmore and Hensel were shouting out to call the police. After Morrison pulled Wilhelm and Keitt apart, Wilhelm walked out of the store. Morrison said he saw "[a] cut on [Hensel's] forehead." RP (July 20, 2013) at 20. He also said "[Wilhelm] was yelling at this girl [Hensel] . . . just really didn't make that much sense. He was just kind of just yelling and just kind of seemed out of control." RP (July 11, 2013) at 23.

Morrison cleaned and picked up items from the floor of aisle 13. He said the struggle between Wilhelm and Keitt caused food items from the shelf to fall to the floor.He said after the fight broke up, Wilmore "was trying to talk her friend into pressing charges on [Wilhelm]." RP (July 11, 2013) at 21. The State played the store video as Morrison described the actions of Wilhelm, Hensel, Wilmore, Keitt and himself depicted in the video. Morrison said Wilmore and Hensel remained at the store talking to police officers. In response to the prosecutor's question about Hensel's emotional state, Morrison said she was, "[j]ust real anxious and wondering what she should do. . . . Her eyes were just red from just crying and stuff and she just looked like she was—been crying a lot." RP (July 11, 2013) at 21.

Officer Dustin Huberdeau

Police officers arrived approximately seven minutes after the 911 call. Issaquah Police Officer Dustin Huberdeau contacted Hensel as she walked through the QFC parking lot. A store employee pointed Hensel out to Officer Huberdeau, "indicating that she was involved somehow in this fight." RP (July 11, 2013) at 162. Officer Huberdeau said he asked Hensel "to come over to me" and she complied. RP (July 11, 2013) at 162. She told Officer Huberdeau "that she was 'drunk.'" RP (July 11, 2013) at 162.

He saw a bloody cut on her hairline and a broken fingernail. This indicated to him that Hensel "was involved in some type of struggle with breaking a fingernail as well as the cut to her head." RP (July 11, 2013) at 165. He noted that she appeared intoxicated, unstable on her feet, and held a man's wallet in her hand. She "indicated [the wallet] wasn't hers." RP (July 11, 2013) at 163. When he requested Wilhelm's identification, she handed it to him but refused to give Officer Huberdeau Wilhelm's wallet. He asked her how she got the injury. Hensel told Officer Huberdeau that Wilmore injured her in a fight. Officer Huberdeau asked her again how she got injuredand she said that "she fell down." RP (July 11, 2013) at 183. She also said she did not know about the forehead injury until he pointed it out to her. When the prosecutor asked Officer Huberdeau "what could you tell about her? What could you see about her?" RP (July 11, 2013) at 168. He described what he observed:

She was very—I mean, with most intoxicated people, you're very up and down emotionally. You know, she was very calm, thought things were funny at one point and then she became very serious and shut down. And then she would be, again, you know, more light—lighthearted essentially, telling me stuff and then brought it back to, you know, doesn't want to say anything.

RP (July 11, 2013) at 168.

Hensel told Officer Huberdeau that she was not supposed to be with Wilhelm. She refused to cooperate and declined to give Officer Huberdeau a statement about what happened. She said she did not want to cause trouble for Wilhelm.

[STATE]: Officer Huberdeau, did Ms. Hensel tell you why she did not want to tell you—or talk to you or give you a statement?

[OFFICER HUBERDEAU]: She indicated she didn't want to get her boyfriend in trouble because she knew he wasn't supposed to be with her.

RP (July 11, 2013) at 182.

Officer Huberdeau testified that after Miranda warnings, Wilhelm denied being present at the QFC and denied he knew Hensel. Wilhelm later admitted he knew Hensel but denied that they were dating.

Officer Scott Geiszler

Issaquah Police Officer Scott Geiszler testified that when he arrived, Hensel was walking around outside calling out Wilhelm's name. She was "visibly upset," "crying," and "hysterical." RP (July 15, 2013) at 13. Officer Geiszler said she appeared intoxicated. He said Hensel was "not very cooperative" with police about whathappened. RP (July 15, 2013) at 14, 16. Officer Geiszler told her that "it wasn't okay for her to be beaten, for her to be assaulted." RP (July 15, 2013) at 16. Officer Geiszler tried to persuade Hensel to give him a statement about what happened. He told her about "[domestic violence] programs out there to help her with the situation." RP (July 15, 2013) at 16. Hensel responded by telling Officer Geiszler that she loved Wilhelm and did not want to get him in trouble. She did not deny or correct Officer Geiszler's comment about her being beaten or assaulted. She let Officer Geiszler photograph her injury but refused to allow him to photograph her face and refused to give him a statement. The court admitted two photographs depicting Hensel's injury....