Appeal from Superior Court of King County. Docket No: 94-1-01093-6. Date filed: 10/01/94. Judge signing: Hon. Harriett M. Cody.
Authored by Walter E. Webster. Concurring: C. Kenneth Grosse, William W. Baker
The opinion of the court was delivered by: Webster
WEBSTER, J. -- A threat to cause bodily injury in the future is harassment. Here, the State charged Thomas Carroll with felony harassment, alleging that he threatened to kill Marissa Hamm. Carroll challenges the sufficiency of evidence, arguing that the prosecution only produced evidence of a threat to cause immediate injury. We agree. Carroll's threat, immediately after which he got a paring knife from the kitchen and chased Hamm around the kitchen and living room, was one continuous act. Because he did not threaten to injure Hamm in the future, we reverse the harassment conviction. On the other hand, we find no merit in Carroll's other assignment of error, nor in his personal restraint petition. Hence, we affirm his first degree burglary conviction, and dismiss his petition.
While driving around Anchorage, Alaska, Marissa Hamm and a friend picked up a hitchhiker, Thomas Carroll. Although Hamm and Carroll later lived together for a couple of years, she moved fifteen times, often to get away from him. Hamm eventually moved into a shelter, then to her parents' home in Woodinville, Washington.
On January 6, 1994, Thomas came to that house, and Hamm let him in. From Hamm's perspective, Carroll was acting "psycho." He talked of Sodom and Gomorra, and scared her by saying he was going to poke out her eye. While Hamm kept talking to him, Carroll went into the kitchen, got a paring knife, and began chasing her around the kitchen and living room. He eventually went out on the deck, she locked him out and called the police. He got back in but then left.
On January 13, 1994, Hamm woke up and found that Thomas had broken into the house. "He was really wierded out," saying things like "I am going to slap your face off" and "you need to die." Hamm repeatedly told him to leave but he wouldn't go. She tried to call 911 but he grabbed the phone from her. He poked Hamm in the eye, struggled with her, grabbed her hair and while pushing her head down towards his crotch, demanded oral sex. Eventually, she managed to call 911 from a different extension and he left.
Carroll went from the house to an adjacent road where a Woodinville resident, driving to the grocery store, almost hit him. She gave Carroll a ride to a store, then asked him to get out. He did. When returning home, the resident saw police cars outside the residence where she had picked Carroll up. She stopped and gave a statement. At trial, she identified Carroll as the man to whom she had given a ride.
The State charged Carroll with felony harassment on January 6th and first degree burglary on January 13th. The jury convicted on both counts.
In order to convict Carroll of felony harassment, the state had to prove that on January 6, 1994, he (1) without lawful authority, (2) knowingly threatened, *fn1 (3) to kill Hamm, *fn2 (4) in the future, and (5) with words or conduct that placed Hamm in reasonable fear that he would cause her bodily injury. *fn3 The "in the future" element of harassment requires evidence that "the threat is one to cause injury at a different time or place than the time and place" where he made the threat. *fn4 Carroll's threat, his procurement of the knife, and the chase were one continuous course of conduct. Carroll did not threaten to harm Hamm at a different place or time than the place and time he uttered the threat. *fn5 Thus, the evidence was insufficient to establish the crime of harassment. ER 404(b)
Carroll next contends that his burglary conviction should be reversed because the court improperly admitted evidence that Carroll verbally and physically abused Hamm during their relationship, that she moved to a women's shelter for two weeks because she "had been threatened in the hospital a few times," and that she later moved to Washington State. Carroll argues that this evidence was precluded by ER 404(b). Under that rule, the court must identify a relevant purpose for which the evidence is admissible. *fn6 The party seeking admission has the burden of proving, by a preponderance of the evidence, that the defendant committed the other act or wrong. *fn7 The court must also conduct an on-the-record balancing of whether the probative value of the evidence substantially outweighs the danger of unfair prejudice. *fn8 This court reviews the admission of evidence for abuse of discretion. *fn9 Here, the court found the evidence logically relevant: the reasonableness of Hamm's fear that Carroll would cause her bodily injury is an element of the crime. *fn10 Evidence of past abuse is relevant to that element. *fn11 The court's ruling relating to the preponderance of the evidence, however, is confusing. In this regard, at an early point in the ruling, the court seems to hold that it found no evidence of prior assaults. *fn12 On the other hand, that particular statement by the court and a subsequent explanation indicate that it found the evidence insufficient only as it related to Carroll's actual arrest or detention for domestic violence. *fn13 This latter interpretation is more persuasive for two reasons. First, when the court balanced prejudice and probative value, it distinguished incidents of arrest and detention from the fact that abuse occurred. *fn14 Second, the court ultimately allowed the prosecution to elicit "in general terms the fact there was a history of incidents of violence between Mr. Carroll and her . . . ." It would only have allowed that evidence to be introduced if it found that physical and verbal abuse did occur.
The primary error alleged by Carroll is the absence of a finding that past abuse occurred. For the reasons just stated, we reject that argument as a misinterpretation of the trial court's ruling. What is more, the court's balancing -- and its limit on the scope of evidence that it allowed -- demonstrate a judicious approach to admission of potentially inflammatory evidence. The court also instructed the jury that Hamm's generalized description of her previous relationship with Carroll could be considered only as to Hamm's state of mind. And the defense did not except to the ...