STATE v. BLANCHFIELD (2005)

PART PUBLISHED OPINION

¶ 1 After a jury convicted William Blanchfield of fourth degree domestic violence assault, the superior court ordered that Blanchfield pay restitution to the victim of his assault.   He appeals, arguing that the trial court erred in ordering restitution, that the State's witnesses gave improper opinion testimony, and that his counsel was ineffective for failing to object to that testimony.   Holding that the trial court erred in ordering restitution for some of the victim's claimed damages but that the State's witnesses did not give improper testimony and Blanchfield's counsel was not ineffective, we affirm Blanchfield's conviction but vacate part of the restitution order.

FACTS

¶ 2 On August 13, 2002, a domestic argument between Blanchfield and Laura Aymond turned violent.   Because of the argument, Aymond planned to go to a motel but could not find her purse, which contained her keys, driver's license, and credit cards.   She believed that Blanchfield had hidden her purse, although he denied it.   Aymond spent a couple of hours looking for her purse.   Finally, she grew frustrated, screamed “I just want my F'ing purse,” ran toward Blanchfield and grabbed his arms or shoulders.   2 Report of Proceedings (RP) at 99.   She claimed that Blanchfield pushed or shoved her back, causing her to fall and hit her head on an end table.¹  After she got up, Blanchfield pushed her again, causing her head to hit the wall and a picture to fall from the wall onto her shoulder.   She said she picked up the picture, threw it at Blanchfield, and ran into the bedroom.

¶ 3 About one-half hour later, Aymond heard the telephone ring.   After he answered the call, Blanchfield told Aymond that his son had been injured at work and that he had to attend to him.   After Blanchfield left, Aymond found her purse in the back of a closet where Blanchfield had told her not to look.   When she tried to leave, she found that the door of her car was damaged and that the car would not start.   Blanchfield returned home and denied having done anything to her car.

¶ 4 The next day, Aymond went to a hotel, where she stayed for the next three nights.   She made arrangements with movers to remove her belongings from Blanchfield's house.   On August 15, she returned to Blanchfield's house to pack her belongings.   She and her son returned to Blanchfield's house on August 16 to finish packing her belongings.   During this visit, Aymond claimed that Blanchfield began yelling to “get the [f* * *] out.”   2 RP at 118.   She and her son left, and she went to the police.

¶ 5 When Aymond went to the police on August 16, she had a black eye, an injury to her right foot, and pain in her lower back and left shoulder.   She sought medical attention for those injuries on August 17.   Deputy Eugene Abuan interviewed Aymond and took photographs of her eye, left arm, and right foot.   He then talked to Blanchfield, who did not want to answer his questions.   Deputy Kevin Johnson later conducted a follow-up investigation, including interviewing Aymond, taking additional photographs, and obtaining her medical records.

¶ 6 The State charged Blanchfield with second degree assault-domestic violence and with first degree malicious mischief-domestic violence.   Aymond and the deputies testified as described above.

¶ 7 Blanchfield's son testified to prior arguments between Aymond and Blanchfield.   He also testified that later in the evening of August 13, Aymond returned to Blanchfield's house.   Aymond was intoxicated, swore at Blanchfield, turned over a table, grabbed Blanchfield's hair, and tried to grab a steak knife.   Blanchfield testified that he had disabled Aymond's car, by detaching the coil wire, to prevent her from driving while intoxicated, but he denied damaging the car.

¶ 8 Blanchfield testified that during the argument on August 13, Aymond had taken the picture from the wall, hit him in the head with it, lunged at him, and grabbed his neck and shoulders.   He jerked away from her, causing her to trip over the end table.   He did not believe she had been injured when she fell.   He asserted that he had hidden her purse to prevent her from driving while intoxicated.   He also testified that Aymond had returned to his house later that night, started to argue with him again, turned over a table, wrestled with him, and tried to grab a steak knife.   He denied that Deputy Abuan asked him any questions on August 16.   He testified that the deputies had simply arrested him.

¶ 9 At Blanchfield's request, the court instructed the jury on self-defense and the lesser included crime of fourth degree domestic violence assault.   The jury acquitted Blanchfield of second degree assault and of first degree malicious mischief but convicted him of fourth degree domestic violence assault.

¶ 10 At a subsequent restitution hearing, the State sought restitution as follows:

Restitution Exhibits 1 through 5.

¶ 11 As to restitution to Aymond, Blanchfield disputed the connection of the hotel bill, moving company bill, and Aymond's unreturned belongings to the assault.   He also disputed the values Aymond gave for the snow tires, the weight bench and weights, the outdoor table and chairs, and the suitcase.   As to restitution to the Crime Victims Compensation (CVC) Program, Blanchfield objected to the lack of details as to the services the program paid for.   The court ordered restitution in the amounts the State requested.   Blanchfield timely appealed his conviction and the restitution order.

ANALYSIS

1. Restitution Order

 ¶ 12 When restitution is authorized by statute, an award of restitution falls within the discretion of the trial court and we will not disturb the award of restitution absent an abuse of discretion.  State v. Enstone, 137 Wash.2d 675, 679, 974 P.2d 828 (1999);  State v. Davison, 116 Wash.2d 917, 919, 809 P.2d 1374 (1991).   Under former RCW 9.94A.753(5) (2002), restitution “shall be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property.”   The amount of restitution must be based on “easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment to persons, and lost wages resulting from injury.”   Former RCW 9.94A.753(3).

 ¶ 13 Blanchfield argues first that the hotel bill, the moving company bill, and the value of Aymond's unreturned belongings were not causally connected to the assault for which he was convicted and, thus, should not have been part of the restitution order.  “ ‘A restitution order must be based on the existence of a causal relationship between the crime charged and proven and the victim's damages.’  ” State v. Woods, 90 Wash.App. 904, 907, 953 P.2d 834 (1998) (quoting State v. Blair, 56 Wash.App. 209, 214-15, 783 P.2d 102 (1989)).   The State responds that but for Blanchfield's assault, and her subsequent fear of further violence from Blanchfield, Aymond would not have needed to stay in the hotel or employ movers and would have been able to retrieve all of her belongings from Blanchfield's house.

¶ 14 We agree with Blanchfield.   In Woods, this court reversed a restitution order against a person convicted of possessing a stolen truck for belongings that had been in the truck when it was stolen.   We held, “it cannot be said that ‘but for’ Woods's possession of the stolen vehicle in September, the owner would not have lost the personal property located in the vehicle when it was stolen in August.”  Woods, 90 Wash.App. at 909-10, 953 P.2d 834.   Here, Aymond had already planned to go to a hotel after her argument with Blanchfield began, and she did not go to the hotel until the next night, so her hotel stay was not causally connected to the assault.   Nor did Aymond show that but for Blanchfield's assault, she would not have incurred the moving company expenses.   Her decision to move was not causally connected to Blanchfield's assault, so her moving expenses could not be part of the restitution arising from the assault.   Similarly, the loss of Aymond's belongings was not causally connected to Blanchfield's assault, so the value of those belongings could not be part of the restitution arising from the assault.   Without the required causal connection, the trial court lacked the statutory authority to award restitution for those expenses and losses.   Therefore, we vacate those expenses and losses from the restitution order.

 ¶ 15 Blanchfield argues next ² that Aymond's statement as to her medical expenses and the report from the CVC Program were insufficient to show that those expenses were causally connected to the assault.   He relies on State v. Hahn, 100 Wash.App. 391, 399-400, 996 P.2d 1125 (2000), and State v. Bunner, 86 Wash.App. 158, 160, 936 P.2d 419 (1997), which held that a Department of Social and Health Services (DSHS) summary report of medical expenses was insufficient.   In Hahn and Bunner, the court had only the DSHS summary report of medical expenses.  Hahn, 100 Wash.App. at 399-400, 996 P.2d 1125;  Bunner, 86 Wash.App. at 159-60, 936 P.2d 419.   Here, Aymond testified that the payments to St. Peter's Hospital and William Hurley arose from her emergency room visit on August 17, that the payment to South Sound Radiologists was for reading x-rays taken during that visit, that the payments to L.A. Agatrap were for orthopedic follow-ups for injuries caused by Blanchfield's assault, and that the payments to William Hinson were for physical therapy for injuries caused by Blanchfield's assault.   The court did not abuse its discretion in basing the amount of restitution for medical expenses on Aymond's statement, the CVC report, and Aymond's testimony.

¶ 16 We vacate the restitution order as to its award of the hotel bill, the moving company bill and the value of Aymond's belongings.   We affirm the restitution order as to its award of medical co-payments Aymond paid and medical expenses the CVC program paid.

¶ 17 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

2. Opinions as to Guilt

¶ 18 Blanchfield argues that the following portions of Deputy Abuan's testimony were opinions as to his guilt and, therefore, improper:

[Direct examination]

Q. What do you look for, Deputy, when you respond to a domestic call?

A. The first thing we look at is injury, things of that nature.   Obviously we want to make sure there's going to be proper medical aid.   Actually, for a domestic call itself, in this nature, we're looking for a relationship between the individuals involved, and then also we're looking for a crime.   We want to make sure that we have a crime and try to basically sort everything out and determine if there's a crime, if there's not a crime, if ․ any help is needed, and where we go from there.

․

Q. Are there instances that you've gone out and ultimately decided that there was no crime?

A. Of course.

․

Q. Deputy, are you familiar with something called a “domestic violence supplemental form”?

A. Yes, I am.

Q. What is that?

A. Just in the nature of this title, it's a supplemental form that we usually fill out when we have a domestic violence incident.   We usually fill out the first part, which depicts name, address, things of that nature, relationships between the victim and the suspect, a little bit of incident information, victim demeanor, injuries, any evidence collected, and then some relationship information.   Then on the back, the other side, we allow the actual-I want to say the actual victim-to fill out the information.

Q. Did you use one of these domestic violence supplemental forms with Laura Aymond?

A. Yes, I did.

Q. Did Laura, in fact, fill out her part of the form as well?

A. Yes, she did.

․

[Cross-examination]

Q. Is there any reason why you decided to go arrest my client two and a half days after this incident occurred?

A. Based on my investigation, I felt that I had probable cause to arrest your client.   I knew of his location, I knew he was there, and that's it.

․

[Re-direct examination]

Q. Do you believe you had probable cause in this instance?

A. I do.

․

[Rebuttal cross-examination]

Q. And after you met with Ms. Aymond, was it your intent to go to Mr. Blanchfield's house and arrest him for this assault?

A. I had probable cause to arrest him, but my first intent was to gather information, to get his side of the story, to see if there was any refutable evidence for the probable cause.

․

Q. But it was your intent to eventually arrest Mr. Blanchfield, wasn't it?

A. I had probable cause based on [Aymond's] statement that I could, but if there was irrefutable evidence that said not, then, no, it was not.   It all depended upon the situation at hand.   Like I said, it was a very fluid situation, so we had discretion.

2 RP at 53, 54, 69, 76, 79;  4 RP at 368-69.

¶ 19 He also argues that the following portion of Deputy Johnson's testimony was an opinion as to guilt and, therefore, improper:

Q. What did you do when you first received this case for follow-up investigation?

A. I first called and talked to Laura Aymond.

Q. Why did you do that?

A. She was the victim on this case.   I wanted to set an appointment with her.

3 RP at 180.

¶ 20 Opinion testimony as to the guilt of the defendant invades the exclusive province of the jury and may be reversible error because it violates the defendant's right to a trial by jury.  State v. Demery, 144 Wash.2d 753, 759, 30 P.3d 1278 (2001).   Even though Blanchfield's trial counsel did not object to any of the above testimony, he may raise his objections for the first time on appeal.  State v. Dolan, 118 Wash.App. 323, 330, 73 P.3d 1011 (2003);  State v. McFarland, 127 Wash.2d 322, 332-33, 899 P.2d 1251 (1995).   In deciding whether testimony is impermissible opinion as to guilt, the court considers the circumstances of the case, including “the type of witness involved,” “the specific nature of the testimony,” “the nature of the charges,” “the type of defense, and” “the other evidence before the trier of fact.”  Demery, 144 Wash.2d at 759, 30 P.3d 1278 (quoting City of Seattle v. Heatley, 70 Wash.App. 573, 579, 854 P.2d 658 (1993)).

¶ 21 Blanchfield contends that the deputies' references to a “crime,” to Aymond as the “victim” and “actual victim,” and to the presence of “probable cause to arrest” were opinions as to his guilt and therefore constitute reversible error.   We disagree.   Under the factors set forth in Demery, the deputies' statements were not opinions as to Blanchfield's guilt.   While testimony by police witnesses creates greater risk of prejudicial opinions as to guilt, the deputies' references to a “crime” and to Aymond as “victim” occurred during direct examination and cross-examination regarding the deputies' methods of investigation.   The references to probable cause arose out of Blanchfield's contention that he was arrested improperly because Abuan lacked probable cause to arrest him.   Under the circumstances here, the deputies' statements were not impermissible opinion testimony as to Blanchfield's guilt.

3. Ineffective Assistance of Counsel

¶ 22 Blanchfield argues that his trial counsel's failure to object to, or move to strike, the deputies' opinion testimony as to his guilt, as described above, violated his right to effective assistance of counsel.   In a claim of ineffective assistance of counsel, the defendant must show deficient performance and prejudice. State v. Hendrickson, 129 Wash.2d 61, 77-78, 917 P.2d 563 (1996). This court presumes that the defendant's trial counsel performed properly.  Hendrickson, 129 Wash.2d at 77, 917 P.2d 563.   The defendant also has the burden of showing prejudice.  Hendrickson, 129 Wash.2d at 78, 917 P.2d 563.

¶ 23 Blanchfield makes no showing to overcome the presumption that he received effective assistance of counsel.   As discussed above, the deputies' testimonial references to “crime,” “victim,” and “probable cause” were not improper opinions as to Blanchfield's guilt.   They were not objectionable, so Blanchfield's counsel's failure to object to or move to strike that testimony was not deficient performance.   Without a showing of deficient performance, Blanchfield's claim of ineffective assistance of counsel fails.

CONCLUSION

¶ 24 We hold that the superior court erred in ordering Blanchfield to pay restitution for Aymond's hotel bill, Aymond's moving company bill, and the value of her belongings, but it did not abuse its discretion in ordering Blanchfield to pay restitution for Aymond's medical expenses that resulted from Blanchfield's assault.   We further hold that the deputies did not opine as to Blanchfield's guilt and that his trial counsel did not deny him effective assistance of counsel.

¶ 25 Accordingly, we affirm his conviction but remand to the trial court to amend its restitution order.

FOOTNOTES

1.   Blanchfield is 9 inches taller and 35 pounds heavier than Aymond.

2.   Blanchfield also argued that Aymond's testimony as to the value of her unreturned belongings was not sufficient to establish the value of those belongings.   Given our holding that the loss of those belongings is not a proper part of the restitution order, we need not address the issue of how those belongings were valued.

ARMSTRONG, J.