STATE v. DOLAN (2003)

OPINION PUBLISHED IN PART

Duane Alan Dolan, Jr., appeals his conviction for assault of a child in the second degree.   We reverse and remand for new trial.

In March 2001, Dolan was living with Jamie Batts and two young children, Rollan and Raymond.   Batts was the biological mother of both children.   Dolan was the biological father of Raymond but not Rollan.

On March 31, 2001, Dolan was watching both children while Batts was out.   When she returned at about 7 p.m., she went upstairs to wake Rollan from his nap.   She “saw broken blood vessels clear across his throat, and [ ] started freaking out.” ¹  Dolan denied injuring Rollan, they argued, and he left the apartment.   Batts went looking for him, found him, and they continued arguing.

Four hours later, Batts took Rollan to the emergency room.   She attributed the four-hour delay to arguing with Dolan, being scared of an outstanding warrant, and needing to get a ride because the lights on her car did not work.

The State charged Dolan with assault of a child in the second degree.   A trial ensued, at which the main issues involved the nature and cause of Rollan's injuries.   Dolan denied inflicting Rollan's injuries;  he theorized either that Batts had inflicted them or that Rollan had self-inflicted them.   Dr. Geraldine Stark testified that she had examined Rollan at the emergency room, and that Rollan's bruises indicated deep injury not likely to have been self-inflicted.²  Dr. William Brady testified that the marks were superficial skin abrasions that could have resulted from quickly rubbing the skin without much force or pain.³  Dr. John Stirling testified that the injuries were not accidental and were caused by significant force on the child's throat.⁴  The jury convicted, and the court imposed 36 months.

Dolan raises a number of issues on appeal.   He claims that the trial court erred by (1) excluding evidence supporting an inference that Batts was biased against him;  (2) admitting opinions from a police officer and social worker that Batts was not a cause of Rollan's injuries;  (3) giving Jury Instruction 12, which said that bruising and swelling can be “sufficient evidence” of substantial bodily harm;  (4) refusing to instruct on third and fourth degree assault;  (5) excluding Batts's prior convictions;  (6) restricting him from arguing that Batts's access to Rollan cast doubt on whether he had injured the boy;  (7) allowing the prosecutor to question him on uncharged acts involving other children;  and (8) giving a “to convict” instruction that did not state all the elements of the crime.

I.

 Dolan argues that the trial court erred by excluding evidence of Batts's motives and bias.   At trial, he offered to prove that he and Batts were engaged in a bitter custody dispute over Raymond and that Batts had promised to make “this whole thing go away” if Dolan would relinquish custody of Raymond.⁵  By excluding both offers, Dolan now asserts, the trial court violated both the rules of evidence and his federal constitutional right to confront the witnesses against him.

The State does not deny that Dolan and Batts were involved in a custody dispute over Raymond at the time of the trial in this case.   The State responds, however, that the evidence was irrelevant because it involved “a collateral matter” that “had nothing to do with [Batts's] ‘perception and credibility’ ․ in the assault case[,]” and because “[t]he entire custody case arose after [Dolan] was charged with assaulting Rollan.” ⁶

 The Sixth Amendment's confrontation clause requires that an accused be permitted to cross-examine a witness for bias.⁷  The rules of evidence do also.⁸  Bias can arise from a variety of circumstances, including civil proceedings between the victim and the defendant.⁹  Bias includes that which exists at the time of trial, for the very purpose of impeachment is to provide information that the jury can use, during deliberations, to test the witness' accuracy while the witness was testifying.¹⁰

The evidence in issue here showed that Batts and Dolan were embroiled in a custody dispute at the time of trial.   Regardless of whether the dispute had arisen after the assault and was being litigated in a separate action, its existence at the time of trial had a tendency to show Batts was biased against Dolan.   Dolan had a right to present such bias to the jury, especially where the State's case rested heavily on Batts and was entirely circumstantial.   The evidence should have been admitted;  its exclusion was not harmless;  and a new trial is required.

II.

 Dolan argues that a police officer and case worker should not have been allowed to opine that Batts was not a cause of the bruising on Rollan's neck.   The State asked the officer:

[PROSECUTOR:] When you talked to [Batts], was there any indication that she could have done this when you were investigating the case?

[OFFICER:] I don't believe so.[11]

The State asked the case worker:

[PROSECUTOR:] ․ Why didn't CPS make the mother leave the residence?

․

[CASE WORKER:] ․  I didn't feel that the child was at risk with [the] mother, and she wasn't really the person in question.[12]

Every opinion must be based on knowledge.¹³  Proper lay opinion is based on personal knowledge.¹⁴  Proper expert opinion is based on scientific, technical, or specialized knowledge.¹⁵  The opinions offered here were not based on either type of knowledge, and hence they were not admissible.¹⁶

 In addition, a witness may not give, directly or by inference, an opinion on a defendant's guilt.¹⁷  To do so is to violate the defendant's constitutional right to a jury trial and invade the fact-finding province of the jury.¹⁸  “Particularly where such an opinion is expressed by a government official, such as a sheriff or a police officer, the opinion may influence the fact finder and thereby deny the defendant of a fair and impartial trial.” ¹⁹  Here, the evidence showed that both Dolan and Batts had access to Rollan at pertinent times, and it was up to the jury, not a witness, to opine on the significance of that fact.

The State argues that Dolan opened the door to these otherwise improper opinions by eliciting from the caseworker, Magnano, Batts's prior inconsistent statement on who had put Dolan to bed on March 31, 2001.   However, Dolan did not elicit improper opinion or invade the province of the jury, and he did not open the door.

 The State argues that Dolan waived his objections by not making them at trial.   Because improper opinion testimony violates the constitutional right to a trial by jury, it may be raised for the first time on appeal.²⁰  It may be raised now, and even if it could not be, other errors would warrant reversal.

The State argues that the improper opinions constituted harmless error.   Given that improper opinion testimony violates the constitutional right to a jury trial,²¹ it must be harmless beyond a reasonable doubt.²²  We cannot say that the evidence in issue here meets that test, especially when cumulated with the other errors noted herein.²³

III.

 Dolan argues that the trial court should have given Jury Instruction 11, but not Jury Instruction 12.   Jury Instruction 11 stated:

Substantial bodily harm means bodily injury that involves a temporary but substantial disfigurement, or that causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or that causes a fracture of any bodily part.[24]

Jury Instruction 12 stated:

The presence of bruising and swelling can be sufficient evidence of substantial bodily harm.   The bruising and swelling can constitute temporary but substantial disfigurement.[25]

Jury Instruction 11 appears in the Washington Pattern Instructions, while Jury Instruction 12 does not.   Dolan objected to Instruction 12 on the ground that it forced the jury to find substantial bodily harm if the jury believed there was any degree of bruising and swelling.   Relying on State v. Ashcraft²⁶ and State v. Brown,²⁷ the trial court ruled that Instruction 12 was necessary because Instruction 11 “doesn't give the jury any direction as to what the status of the law is.” ²⁸

We faced a similar problem in State v. Huff.²⁹ The defendant proposed an instruction saying the State had to prove constructive possession by “substantial” circumstantial evidence.   The judge refused to so instruct.   We affirmed, holding as follows:

The phrase “substantial evidence” describes the burden of production in all cases, while the phrase “beyond a reasonable doubt” describes the burden of persuasion in criminal cases.   The burden of production is applied by the judge, while the burden of persuasion is applied by the jury.   It follows that the question of “substantial evidence” is for the judge, not the jury, and that the judge in this case correctly declined to include it in the instructions that he gave to the jury.[³⁰ ]

These concepts hold true here.   The court had the duty to decide whether evidence of bruising and swelling was sufficient to go to the jury (as clearly it was in both Ashcraft and Brown ).   The court could not properly delegate its duty to the jury, and thus it had no reason to instruct the jury that bruising and swelling “can be sufficient evidence of substantial bodily harm.”   At best, the instruction was immaterial to the function of the jury and misleading to jurors untrained in the distinctions between production and persuasion.   At worst, it improperly commented ³¹ that evidence showing bruising and swelling also shows substantial bodily harm.   Instruction 11 gave each party a proper legal platform from which to argue its position to the jury, and Instruction 12 should not have been given.

Reversed and remanded for new trial.

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.

IV.

Dolan assigns error to the trial court's refusal to instruct on third and fourth degree assault.   The trial court refused because it believed that the evidence was insufficient to support either instruction.32  When reviewing the refusal to give a lesser degree instruction, we must take the evidence in the light most favorable to the instruction's proponent.33

A trial court must instruct on a lesser degree of the charged offense if the evidence is sufficient to support a finding that the greater degree did not occur while the lesser degree did.34  The greater in this case is second degree assault, while the proposed lessers are third and fourth degree assault.   A person commits second degree assault, insofar as pertinent here, if he or she “[i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm[.]” 35  A person commits third degree assault, insofar as pertinent here, if he or she, “[w]ith criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering[.]” 36  A person commits fourth degree assault if he or she intentionally “assaults another [,]” 37 whether or not he or she inflicts substantial bodily harm.

The evidence was not sufficient to support an instruction on third degree assault.   According to the State's evidence, Dolan had intentionally assaulted Rollan.   According to Dolan's evidence, he had not assaulted Rollan at all.   There was nothing from which the jury could have found criminal negligence, and the trial court was not required to instruct on that crime.

The evidence here was sufficient to support an instruction on fourth degree assault.   The jury could rationally have found that Dolan intentionally assaulted Rollan.   At the same time, the jury could also have found that the bruising and swelling on Rollan's neck did not constitute substantial bodily harm beyond a reasonable doubt.   If the jury had known of these options, and had chosen to use them, it could rationally have acquitted on second degree assault but convicted on fourth degree assault.   Thus, the trial court erred by refusing to instruct on fourth degree assault.

V.

Dolan argues that the trial court was required to admit Batts's prior convictions.   She had a 1992 juvenile adjudication for making a false statement, a 1996 second degree kidnapping conviction, and a 1997 attempted kidnapping conviction.

The trial court did not abuse its discretion by excluding the 1992 juvenile conviction under ER 609(d).  Nor did it abuse its discretion by excluding the 1996 and 1997 kidnap matters under ER 609(a)(1),38 as the present record does not show that either kidnap incident involved restraint by deceit rather than restraint by force.39  The trial court did not err.

VI.

Dolan argues that the trial court erred by not permitting him to argue that Batts's access to Rollan created a reasonable doubt about whether he was the one who had injured Rollan.   The State does not dispute that he was entitled to make such an argument; 40  rather, it claims he made such an argument before the trial was over.41

After reviewing the record, we agree with the State.   If the trial court improperly restricted Dolan's defense early on, the error became harmless later in the trial, and it should not arise again.

VII.

Dolan argues that the trial court erred by allowing evidence of uncharged bad acts.   He bases his argument on a short portion of his cross-examination, in which the State asked:

[PROSECUTOR:] Are you ever rough with [children] when you play with them?

[DOLAN:] Not really․

[PROSECUTOR:] Are there times when you've ever been playing with Roland [sic] or other children and been a little rough with them[?]

[DOLAN:] No.[42]

The State erred by asking about uncharged acts involving other children 43 without first showing they had occurred,44 and without asking the trial court to balance on the record.45  The error was clearly harmless, however, considering the inquiry's brevity and Dolan's denial.   The problem should not arise again.

VIII.

Dolan argues that the trial court erred because its “to convict” instruction did not have all the elements of the crime charged.   Jury Instruction 13 stated:

To convict the defendant of the crime of Assault of a Child in the Second Degree, each of the following elements must be proved beyond a reasonable doubt:

(1) That on or about the 31st day of March, 2001, the defendant committed the crime of Assault in the Second Degree against Rollan James Desmond Batts (dob:  9-15-98);

(2) That the defendant was eighteen years of age or older and Rollan James Desmond Batts was under the age of thirteen;  and

(3) That the acts occurred in the State of Washington.

If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.

On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.[46]

To find the elements of second degree assault, one had to look back to Instruction 7, which provided that “[a] person commits the crime of Assault in the Second Degree when he intentionally assaults another and thereby recklessly inflicts substantial bodily harm.” 47

According to our Supreme Court, “The jury has a right to regard the ‘to convict’ instruction as a complete statement of the law and should not be required to search other instructions in order to add elements necessary for conviction.” 48  If on retrial Dolan proposes a correct and proper “to convict” instruction that has all the elements, that instruction should be given.

The remaining issues do not affect this appeal and are not likely to arise on retrial.

Reversed and remanded for new trial.

FOOTNOTES

1.   Report of Proceedings (RP) at 121.

2.   RP at 219.

3.   RP at 240-42.

4.   RP at 331.

5.   RP at 40-42, 46-49.

6.   Br. of Resp't at 8-9.

7.   Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988);  Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

8.   United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984).

9.   State v. Boesseau, 168 Wash. 669, 671, 13 P.2d 53 (1932);  State v. Eaid, 55 Wash. 302, 307-08, 104 P. 275 (1909);  State v. Constantine, 48 Wash. 218, 220, 93 P. 317 (1908);  State v. Guizzotti, 60 Wash.App. 289, 292-94, 803 P.2d 808, review denied, 116 Wash.2d 1026, 812 P.2d 102 (1991);  Wayne F. Foster, Annotation, Right to Cross-Examine Prosecuting Witness As To His Pending or Contemplated Civil Action Against Accused for Damages Arising Out Of Same Transaction, 98 A.L.R.3d 1060, 1065-67 (1980);  cf.  Alston v. Blythe, 88 Wash.App. 26, 40-41, 943 P.2d 692 (1997).

10.   Cf. State v. Harmon, 21 Wash.2d 581, 590-91, 152 P.2d 314 (1944) (within trial court's discretion to determine if statement was made close enough to trial to indicate bias at time of testimony);  State v. Tigano, 63 Wash.App. 336, 344-45, 818 P.2d 1369 (1991), review denied, 118 Wash.2d 1021, 827 P.2d 1392 (1992) (impeachment may focus on time of event or time of trial).

11.   RP at 192.

12.   RP at 291.

13.   ER 701;  ER 702;  State v. Kunze, 97 Wash.App. 832, 850, 988 P.2d 977 (1999), review denied, 140 Wash.2d 1022, 10 P.3d 404 (2000);  Riccobono v. Pierce County, 92 Wash.App. 254, 268, 966 P.2d 327 (1998).

14.   ER 701;  Kunze, 97 Wash.App. at 850, 988 P.2d 977;  State v. Carlson, 80 Wash.App. 116, 124, 906 P.2d 999 (1995);  Advisory Committee's Note to FRE 701, 56 F.R.D. 183, 281.

15.   ER 702;  Kunze, 97 Wash.App. at 850, 988 P.2d 977;  Carlson, 80 Wash.App. at 124, 906 P.2d 999.

16.   See Kunze, 97 Wash.App. at 850, 988 P.2d 977;  Carlson, 80 Wash.App. at 124, 906 P.2d 999.

17.   State v. Madison, 53 Wash.App. 754, 760, 770 P.2d 662, review denied, 113 Wash.2d 1002, 777 P.2d 1050 (1989).

18.   State v. Demery, 144 Wash.2d 753, 759, 30 P.3d 1278 (2001).

19.   State v. Carlin, 40 Wash.App. 698, 703, 700 P.2d 323 (1985).

20.   State v. McFarland, 127 Wash.2d 322, 332-33, 899 P.2d 1251 (1995).

21.   Demery, 144 Wash.2d at 759, 30 P.3d 1278.

22.   Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967);  State v. Guloy, 104 Wash.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1208, 89 L.Ed.2d 321 (1986).

23.   See State v. Perrett, 86 Wash.App. 312, 322-23, 936 P.2d 426, review denied, 133 Wash.2d 1019, 948 P.2d 387 (1997).

24.   Clerk's Papers (CP) at 90.

25.   CP at 91.

26.   71 Wash.App. 444, 455, 859 P.2d 60 (1993) (“The presence of the bruise marks indicates temporary but substantial disfigurement”).

27.   60 Wash.App. 60, 802 P.2d 803 (1990), review denied, 116 Wash.2d 1025, 812 P.2d 103, overruled on other grounds by State v. Grewe, 117 Wash.2d 211, 219-20, 813 P.2d 1238 (1991).

28.   RP at 312.

29.   64 Wash.App. 641, 826 P.2d 698, review denied, 119 Wash.2d 1007, 833 P.2d 387 (1992).

30.   64 Wash.App. at 655, 826 P.2d 698 (citation omitted).

31.   See Wa. Const.. art.   IV, § 16.

FN32.  We review the trial court's ruling in part because the same issue will arise on retrial.   We neither overlook nor excuse Dolan's failure to comply with CrR 6.15(a)..  FN32.  We review the trial court's ruling in part because the same issue will arise on retrial.   We neither overlook nor excuse Dolan's failure to comply with CrR 6.15(a).

FN33. State v. Fernandez-Medina, 141 Wash.2d 448, 455-56, 6 P.3d 1150 (2000);  State v. Barker, 103 Wash.App. 893, 907, 14 P.3d 863 (2000), review denied, 143 Wash.2d 1021, 25 P.3d 1019 (2001)..  FN33. State v. Fernandez-Medina, 141 Wash.2d 448, 455-56, 6 P.3d 1150 (2000);  State v. Barker, 103 Wash.App. 893, 907, 14 P.3d 863 (2000), review denied, 143 Wash.2d 1021, 25 P.3d 1019 (2001).

FN34. Fernandez-Medina, 141 Wash.2d at 455-56, 6 P.3d 1150;  State v. Roberts, 142 Wash.2d 471, 524-25, 14 P.3d 713 (2000)..  FN34. Fernandez-Medina, 141 Wash.2d at 455-56, 6 P.3d 1150;  State v. Roberts, 142 Wash.2d 471, 524-25, 14 P.3d 713 (2000).

FN35. RCW 9A.36.021(1)(a)..  FN35. RCW 9A.36.021(1)(a).

FN36. RCW 9A.36.031(1)(f)..  FN36. RCW 9A.36.031(1)(f).

FN37. RCW 9A.36.041;  State v. Taylor, 140 Wash.2d 229, 237, 996 P.2d 571 (2000);  State v. Wilson, 125 Wash.2d 212, 217-18, 883 P.2d 320 (1994)..  FN37. RCW 9A.36.041;  State v. Taylor, 140 Wash.2d 229, 237, 996 P.2d 571 (2000);  State v. Wilson, 125 Wash.2d 212, 217-18, 883 P.2d 320 (1994).

FN38.  The present record does not contain a copy of either kidnap conviction or the record supporting such conviction.   It contains only counsel's assertions, none of which shows that restraint was accomplished by deceit.   See RCW 9A.40.010(1)(a).   The requirements of State v. Schroeder, 67 Wash.App. 110, 117-18, 834 P.2d 105 (1992), were not met, even assuming (without holding) that Schroeder applies to kidnap as well as burglary..  FN38.  The present record does not contain a copy of either kidnap conviction or the record supporting such conviction.   It contains only counsel's assertions, none of which shows that restraint was accomplished by deceit.   See RCW 9A.40.010(1)(a).   The requirements of State v. Schroeder, 67 Wash.App. 110, 117-18, 834 P.2d 105 (1992), were not met, even assuming (without holding) that Schroeder applies to kidnap as well as burglary.

FN39.  RP at 60-63..  FN39.  RP at 60-63.

FN40.  The State wanted the jury to infer beyond a reasonable doubt, from Dolan's having been alone with Rollan just before Batts perceived Rollan's injuries, that Dolan must be the one who had inflicted those injuries.   Dolan wanted the jury to infer, from Batts's access to Rollan at various pertinent times, that the inference sought by the State did not exist beyond a reasonable doubt.   The State was entitled to argue its inference, and Dolan was entitled to argue his.   See State v. Maupin, 128 Wash.2d 918, 924-28, 913 P.2d 808 (1996)..  FN40.  The State wanted the jury to infer beyond a reasonable doubt, from Dolan's having been alone with Rollan just before Batts perceived Rollan's injuries, that Dolan must be the one who had inflicted those injuries.   Dolan wanted the jury to infer, from Batts's access to Rollan at various pertinent times, that the inference sought by the State did not exist beyond a reasonable doubt.   The State was entitled to argue its inference, and Dolan was entitled to argue his.   See State v. Maupin, 128 Wash.2d 918, 924-28, 913 P.2d 808 (1996).

FN41.  Br. of Resp't at 9 (Batts “was alone with Rollan for a few moments before calling out to the defendant[,]” but defense counsel “argued that theory in closing”)..  FN41.  Br. of Resp't at 9 (Batts “was alone with Rollan for a few moments before calling out to the defendant[,]” but defense counsel “argued that theory in closing”).

FN42.  RP at 280..  FN42.  RP at 280.

FN43.  Nothing we say affects the State's ability to ask about Dolan's play with Rollan..  FN43.  Nothing we say affects the State's ability to ask about Dolan's play with Rollan.

FN44. State v. Kilgore, 147 Wash.2d 288, 292, 53 P.3d 974 (2002);  State v. Tharp, 96 Wash.2d 591, 593-94, 637 P.2d 961 (1981);  State v. Binkin, 79 Wash.App. 284, 289, 902 P.2d 673 (1995), review denied, 128 Wash.2d 1015, 911 P.2d 1343 (1996)..  FN44. State v. Kilgore, 147 Wash.2d 288, 292, 53 P.3d 974 (2002);  State v. Tharp, 96 Wash.2d 591, 593-94, 637 P.2d 961 (1981);  State v. Binkin, 79 Wash.App. 284, 289, 902 P.2d 673 (1995), review denied, 128 Wash.2d 1015, 911 P.2d 1343 (1996).

FN45. State v. Jackson, 102 Wash.2d 689, 693-94, 689 P.2d 76 (1984)..  FN45. State v. Jackson, 102 Wash.2d 689, 693-94, 689 P.2d 76 (1984).

FN46.  CP at 92..  FN46.  CP at 92.

FN47.  CP at 86..  FN47.  CP at 86.

FN48. State v. Oster, 147 Wash.2d 141, 147, 52 P.3d 26 (2002)..  FN48. State v. Oster, 147 Wash.2d 141, 147, 52 P.3d 26 (2002).

MORGAN, J.