Superior Court County: King. Superior Court Cause No: 94-1-04775-9-SEA. Date filed in Superior Court: 12/12/94. Superior Court Judge Signing: Brian Gain.
Written by: Kennedy, Acj. Concurred by: Baker, CJ, Ellington, J.
The opinion of the court was delivered by: Kennedy
KENNEDY, A.C.J. -- Mark Grant appeals his conviction of one count of domestic violence felony violation of post-sentence court order, contending that the trial court erred in admitting evidence of his prior assault conviction under ER 609(a). The State cross appeals, contending that the trial court erred in holding that evidence of Grant's prior assaults on the victim was inadmissible under ER 404(b). We hold that evidence of Grant's prior assaults on the victim was properly admissible under ER 404(b) because it was relevant in assessing the victim's credibility as a witness and accordingly in determining whether the assault in fact occurred, and because the probative value of the evidence outweighed its prejudicial effect. Any error in admitting the evidence under ER 609(a) was thus harmless. Grant also contends that his prosecution for felony violation of post-sentence court order violated double jeopardy. Because jeopardy did not attach under the circumstances of this case, however, we reject Grant's second challenge and affirm his conviction. *fn1
In 1994, Mark and Maria Grant had been married approximately seven years and had a four year old child, William. In May of 1994, Mark Grant was convicted of second degree assault of Ms. Grant. At sentencing, the court issued an order prohibiting Grant from contacting Ms. Grant for a period of ten years. The court warned Grant that an assault in violation of the order could be prosecuted as a felony.
On July 29, 1994, within days of Grant's release from prison on his assault conviction, Ms. Grant was at a friend's house with William, when Grant arrived. Because she wanted to avoid a scene with Grant, Ms. Grant stayed at the house with him for a period of time, drinking beer and watching movies. When Ms. Grant decided it was time to leave, Grant resisted. He told her she could not take William with her because she was intoxicated. When Ms. Grant insisted on leaving, an altercation ensued during which Grant tore her keys from her hand, cutting her finger. Ms. Grant subsequently permitted Grant to accompany her and William in the car.
While Ms. Grant was driving the car, Grant sat on the passenger side with William on his lap. Ms. Grant testified that Grant began berating her, and that he hit her with his hands as well as with the child's tennis shoes. When Grant attempted to exit the moving car with William, Ms. Grant brought the car to a stop in the middle of the road. Grant began running away with William and Ms. Grant followed, screaming. Bystanders who witnessed the commotion in the street called the police, who arrived shortly thereafter. When he saw the police, Grant told Ms. Grant not to identify him or she would regret it. Ms. Grant initially complied, but when the police removed Grant from her presence, she identified him as her attacker.
On August 3, 1994, the King County prosecutor charged Grant with domestic violence felony violation of post-sentence court order in violation of RCW 10.99.050(2) and 10.99.040(4). On August 16, 1994, Grant's community correction officer filed an order for arrest and detention, alleging that Grant had violated conditions of his supervision by having contact with Ms. Grant. The officer submitted a "Notice of Violation" report to the court on August 22, 1994. Following a hearing on August 25, 1994, Judge Alsdorf found that Grant had violated his supervision by having contact with Ms. Grant. Judge Alsdorf issued an order modifying the assault sentence entered on June 17, 1994, imposing an additional confinement of 30 days for each violation of the conditions of Grant's sentence.
On October 18, 1994, Grant moved to dismiss the information charging domestic violence felony violation of post-sentence court order, arguing that it was barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution and art. I, § 9 of the Washington State Constitution. The trial court denied Grant's motion to dismiss, finding that under United States v. Dixon *fn2 and Blockburger v. United States, *fn3 double jeopardy did not preclude the prosecution because, given the required element of an assault for domestic violence felony violation of post-sentence court order, "the violation that is alleged in this case contains a fact not found and not necessary to be found by Judge Alsdorf at the time he made his findings." Report of Proceedings at 18.
On that same day, the State sought to admit evidence of prior assaults by Grant against Ms. Grant. The trial court issued a series of rulings. The court held first that Grant's prior convictions were not admissible under ER 404(b). Noting that prior convictions are admissible under ER 404(b) to prove such factors as motive, opportunity, and intent, the court held that it was "satisfied that there are circumstances in which those exceptions may be present in this case but at this point based on the representations of Counsel, I'm satisfied that they are not admissible basically because at this juncture they are not relevant. And they are certainly the kind of other crime that is anticipated by 404(b)." Report of Proceedings at 36. Second, balancing the probative value of the evidence against its prejudicial effect, the trial court held that if Grant testified at trial, his prior convictions would be admissible under ER 609(a) for impeachment purposes. *fn4 Finally, the trial court held that prior instances of conduct would be admissible under ER 608(b) only if the defense challenged Ms. Grant's credibility.
The case was tried to a jury on October 27, 1994. Grant testified at the trial. During cross examination, the prosecutor questioned Grant about the assault conviction which led to the no-contact order. In response to a question regarding whether Ms. Grant ever expressed fear of being in a relationship with him, Grant answered:
Because of the assault. I don't know if she would - I imagine she might be. I mean, I only saw her two or three times after that. But we talked about it. Like I said, she was still friendly to me. She didn't show that she was afraid of me no more. It's something I wasn't proud of. But it just happened. We got in an argument and it happened.
Report of Proceedings at 159-60. The prosecutor then asked: "It wasn't an isolated incident was it, Mr. Grant?" Report of Proceedings at 160. Defense counsel objected and, following a sidebar, the trial court sustained the objection.
At the Conclusion of the trial, the jury found Grant guilty as charged and the court sentenced him within the standard range. Grant appeals his conviction, and the State cross-appeals ...