Oral Argument Date April 13, 2015
Appeal from King County Superior Court. Docket No: 13-1-12936-8. Judge signing: Honorable Bruce Heller. Judgment or order under review. Date filed: 12/20/2013.
Lila J. Silverstein and Oliver R. Davis (of Washington Appellate Project ), for appellant.
Daniel T. Satterberg, Prosecuting Attorney, and James M. Whisman, Deputy, for respondent.
Authored by Stephen J. Dwyer. Concurring: J. Robert Leach, Michael J. Trickey.
[187 Wn.App. 925] [¶1] -- Following a jury trial, Peter Rodriquez was convicted of assault in the second degree by strangulation [187 Wn.App. 926] for choking Lori Hendon. Rodriquez's primary contention on appeal is that insufficient evidence was adduced at trial to establish, as required by statute, that Hendon's breathing or blood flow was " obstructed" when Rodriquez choked her. He also contends that, at his request, a Petrich  instruction should have been given to the jury and that evidence of the content of Hendon's 911 call constituted inadmissible hearsay that should not have been admitted at trial. Because Rodriquez does not establish an entitlement to relief on any of his claims, we affirm.
[¶2] Hendon and Rodriquez dated intermittently for 15 years. During that time, she would occasionally allow him to reside in her home. In September 2013, Rodriquez was
staying at Hendon's home, which she shared with her teenage daughter.
[¶3] On the night of September 14, 2013, Rodriquez went out to watch a boxing match at a friend's house. He testified that he was " all riled up from the fight," so he went to a sports bar and drank " pitchers of beer" with friends until 1:30 a.m. He then drove to an after-hours club, where he drank more alcohol and became involved in a " full on fight" with someone whom he associated with Hendon. After being escorted out of the club by security staff, Rodriquez headed to Hendon's house. He described himself as injured and upset.
[¶4] Hendon awoke at around 4:00 a.m. to see Rodriquez outside, parking the car crookedly. Hendon believed that he was intoxicated and met him at the door to offer him some food. Rodriquez instead grabbed her by the throat with one hand and squeezed, threatening to " kick [her] ass" and telling her, " I'm going to fuck you up, bitch." When asked at trial if she could breathe, Hendon said, " No, not really; with [187 Wn.App. 927] the grace of God." She followed Rodriquez upstairs to the hallway " trying to plead a case because I don't want him to jump on me" when he " socked" her in the jaw and " choked" her again. Moving into the kitchen, he began threatening her and repeating " how he was going to fuck [her] up." Rodriquez struck her and put his hands around her throat again, causing her difficulty breathing. These assaults happened within " seconds" of each other.
[¶5] On cross-examination, Hendon admitted that she could not remember whether Rodriquez choked her two or three times that night. She explained, " I was also traumatized at the time ... but I know it was between two and three [times]." She confirmed that she " had trouble breathing" when Rodriquez put his hands on her neck. When asked again about whether he " cut off" her breathing, she repeated twice, " Through the grace of God." The choking episodes left permanent scars on her neck that she displayed to the jury. Hendon attributed the scars to both the assault on September 15 and another assault by Rodriquez the week before.
[¶6] After Rodriquez choked her for the final time, a frantic Hendon awoke her sleeping daughter and, together, they fled their home. She ran around the corner and hid in a bush in her pajamas, with no shoes on, despite the cold, having left her keys and coat behind due to her panicked state. She testified that she " was scared that he was going to come around the corner and come out of the house." [187 Wn.App. 928] Hendon called 911 from the bushes. She recalled the pain in her neck and her difficulty breathing while making the 911 call, which she described as different from that caused by her cigarette smoking.
[¶7] Seattle Police Officer Mark Body was dispatched at around 4:26 a.m. and arrived within minutes, flagged down by Hendon near her hiding spot. Body described Hendon as " very, very upset," " very emotional," and " close to tears when she was describing what had happened." Her description of the incident was consistent with her injuries, which included swelling along both sides of her jaw line, minor discoloration on one side, and marks on her neck " that appeared to have been a grabbing of some sort." Body photographed her injuries. Hendon also told him about the previous week's attack, but not that it involved choking. Hendon mentioned only one instance of choking to Body.
[¶8] Seattle Police Officer Doug Beard joined Body at the scene seven minutes after receiving the dispatch. Beard confirmed that Hendon was dressed only in pajamas and had left her home without even her keys,
and that she displayed injuries consistent with the described assault. He observed darkness around her neck on both sides of her trachea, and some swelling on one side. He also saw bruising on her leg and left arm, which she attributed to the prior incident. Beard noted that those bruises appeared to be older, " whereas the - around the neck and jaw line it appeared more vibrant red and swollen." Beard testified " that [Hendon] was rattled, that she was fearful of going back into her residence" and " really insistent on wanting police to go with her and make sure that it was safe for her to go back into her own home." He recalled Hendon's " repeat[ed] statements about concern for her safety and just her overall body language, a little bit of the shaking and trembling." She kept asking Beard, " Are you going to be able to help me? Can you go to my home and check and make sure everything's okay? What am I going to do, I mean, I have nowhere to go. My daughter and I don't even have shoes on." Hendon described one instance of choking to Beard as well. Her daughter appeared " very upset."
[187 Wn.App. 929] [¶9] After the trial court denied his motion to dismiss for lack of sufficient evidence at the close of the State's case, Rodriquez elected to testify. In addition to describing his drinking and fighting that evening prior to the incident, Rodriquez admitted that he was " maybe a little loud in my talking to [Hendon] ... and everything, because I felt like the guy who I had got into it with, one of her girlfriends knew him." He described the evening as " a bad night" and confessed that he " started getting loud" about whether she knew the man who had fought with him, and that she was trying to calm him down. He testified that he told her " fuck you" when she offered him something to eat: " I'm hell with it, she's going to ask me do I want to eat some food. ... I jumped on her trying to explain to you that I don't want to eat."
[¶10] Rodriquez then testified that Hendon simply left the house for an unknown reason at 4:00 a.m., " probably now thinking that I'm belligerent towards her." When asked why she might have thought this, Rodriquez said, " Because it's easy for anyone to see that you're going to be - or out of hand if you tell them you just been jumped on and you[,] you're sweating[,] your face is swollen." He described Hendon as " a real timid person" and that " she looked at me like you still huffing and puffing, hey, the fight is over. I'm - that's how I'm saying she may have perceived."
[¶11] Rodriquez was charged by information with assault in the second degree-domestic violence. The State also charged the aggravating factor of a history of domestic violence. The State alleged that Rodriquez assaulted Hendon by strangulation. A jury found Rodriquez guilty as charged. Rodriquez stipulated to the existence of the aggravating factor. The trial court sentenced Rodriquez to an exceptional sentence of 25 months of incarceration.
[187 Wn.App. 930] II
[¶12] Rodriquez contends that insufficient evidence supports the jury's verdict of guilt. This is so, he asserts, because the State did not establish that Hendon's breathing or blood flow was " obstructed" when he choked her, as required ...