Superior Court County: King. Superior Court Cause No: 94-1-01570-9-SEA. Date filed in Superior Court: 9/12/94. Superior Court Judge Signing: Donald Haley.
Written by: Baker, CJ, Concurred by: Webster, J., Becker, J.
BAKER, C.J. - Steven Savaria appeals his convictions for felony harassment and intimidating a witness. The State concedes error regarding the conviction for felony harassment because the jury was not instructed to find all of the elements necessary to elevate harassment to a felony. We reverse both convictions because the trial court's denial of Savaria's motion for a new trial based on newly discovered evidence was an abuse of discretion. We also discuss those other issues raised by Savaria which are likely to recur on retrial.
Savaria and the alleged victim (Karelson) had a stormy relationship. As a result of disputed events occurring in December 1993, Savaria was charged with assault and an order was issued prohibiting Savaria from having contact with Karelson. Trial was set for March 3, 1994. Despite the no contact order, Karelson contacted Savaria in late January. The two began seeing each other again. They discussed the upcoming trial and his desire to have the charge dropped. During a telephone conversation the night before trial, Karelson informed Savaria that she was going to appear in court the next day as a witness against him. According to Karelson, Savaria became very angry and said he would get revenge. He threatened to kill her with a gun. She became hysterical and, after calling Savaria back, allegedly called her father and told him about the threat. The next day Karelson and Savaria both appeared at the courthouse. Karelson was sitting in the prosecutor's office talking to a police officer when Savaria appeared at the office window, exhibited his middle finger, and allegedly glared at Karelson. Karelson then disclosed to the police the previous night's threat. Savaria was charged with felony harassment and intimidating a witness.
Savaria unsuccessfully moved in limine to exclude evidence of his prior acts of physical violence against Karelson. The court specified that the evidence was not to be used as character evidence to prove that Savaria is a bad person and acted in conformity with his prior acts, but as evidence tending to prove Karelson reasonably feared him when he threatened her. The reasonableness of her fear was an essential element of the charge of harassment.
After direct testimony by Karelson regarding the prior incidents of violence which characterized the relationship as a cycle of domestic violence, the State sought to admit the no contact order. The trial court erroneously ruled that the order was a necessary element of the charge of felony harassment, and admitted it.*fn1
Defense counsel attempted to impeach Karelson by pointing out that she did not call anyone or tell anyone about the alleged threat before Savaria's gestures at the courthouse the next day. In response, Karelson asserted that she called her father after the previous night's threat. The father's testimony corroborated this assertion, with some inconsistencies (for example, the father stated that the police arrived while he was on the line, but Karelson testified that she did not talk to the police that evening). Defense counsel impeached the father's testimony with his earlier statement, during a pretrial interview, that Karelson did not call him that night.
At the close of testimony, the court denied defense counsel's motion for a mistrial based on the character evidence admitted. The court also denied defense counsel's motion to admit into evidence transcripts of messages Karelson left on Savaria's answering machine, which Karelson had used to refresh her recollection while testifying.
The jury found Savaria guilty as charged on both counts. Savaria unsuccessfully moved for a new trial based on newly discovered evidence of telephone records which would have impeached Karelson's, as well as her father's, testimony about the call to her father.
Savaria argues that the "to convict" instruction for the charge of harassment did not include elements necessary to convict him of either means of felony harassment, and the jury therefore found him guilty of only misdemeanor harassment. The prosecutor and the judge erroneously believed that harassment of a person named in a no contact order, by itself, elevates harassment to a felony. The statute provides that the perpetrator must also have been previously convicted of a crime of harassment for the no contact order to be relevant.*fn2 The State concedes error, and joins Savaria's request that his judgment be reduced to misdemeanor harassment and the cause be remanded for resentencing. It is appropriate to reverse on this issue despite defendant's failure to object at trial because removing an element of the crime from the jury is an error of constitutional magnitude, which may be raised for the first time on appeal.*fn3 We do not remand for resentencing on the lesser crime, however, because we conclude that it is necessary to reverse both convictions.
Savaria argues that the trial court abused its discretion by denying his motion for a new trial based on the newly discovered telephone records.*fn4 Granting a new trial because of newly ...