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State v. Horn

Court of Appeals of Washington, Division 2

April 24, 2018


          BJORGEN, J.

         Michael Ray Horn appeals his conviction of domestic violence felony harassment, arguing that his constitutional right to present a defense was violated. He also contends that the imposition of mandatory deoxyribonucleic acid (DNA) collection and crime victim penalty assessment (VPA) fees violated his substantive due process rights, and he requests that appellate costs be waived. Finally, he raises additional claims in a statement of additional grounds (SAG).

         We hold that (1) Horn's right to present a defense was not violated, (2) the mandatory imposition of DNA and VPA fees did not violate his substantive due process rights, (3) under RAP 14.2, Horn may challenge costs on appeal before our court commissioner if the State requests them and he objects to them, and (4) Horn's SAG claims fail. Accordingly, we affirm.


         Horn and Suzy Oubre became romantically involved while Oubre was estranged from another man with whom she had had a relationship. Horn and Oubre began openly dating in January 2015.

         In January 2015, Horn and Oubre were at Oubre's residence drinking alcoholic beverages. While Oubre was using her cellphone, Horn grew angry and accused her of texting the man with whom she had been involved. According to Oubre, she had never seen him have "an episode like this before." Report of Proceedings (RP) at 141. Horn grabbed Oubre's night shirt and ripped it open, hitting her on the chest in the process.

         Scared that the downstairs neighbor would hear the scuffle, Oubre and Horn went to Horn's home. Once they arrived and got out of the car, Oubre told Horn that she was going to leave, but Horn grabbed her. They began wrestling when Horn pushed her against a wall and down into a flower bed. He bit her multiple times. Oubre did not call the police. After this incident, when Horn would drink too much and get aggressive, she would refer to that facet of Horn's personality as "Bo-Bo." RP at 151. When "Bo-Bo" came out, Oubre was scared for her life.

         On August 7, 2015, Oubre texted Horn that she could no longer "worry about him" and that she had a fear of "Bo-Bo." RP at 196-97. Horn later brought wine and dinner to her house. After dinner, Oubre was on her bed in the master bedroom playing a cellphone game when Horn asked who she was texting. Like the January incident, Horn became angry and accused her of texting the individual with whom she had been involved.

         Oubre told Horn that their relationship was "not going to work." RP at 205. In response, Horn ripped off Oubre's bra and told her she was not going anywhere. After Oubre struck Horn in the chest a couple of times, Horn punched her in the eye, knocking her across the bedroom floor. Horn demanded that Oubre retrieve her cellphone so that he could see the text messages. Oubre, who was now scared, complied and gave her cellphone to him.

         As Horn was looking through the text messages, Oubre tried to push past Horn and leave the master bathroom. Horn blocked her path to the door, and pushed, punched, and kicked her. Eventually, Oubre asked Horn if she could lie down on the bed and have some ice for her eye injury, but he told her that she was not "going to need to worry about [her] eye." RP at 213. He said that he had thought "about this a long time, and you and I are going to die tonight." RP at 213. Oubre believed him.

         Horn retrieved Oubre's gun from under the mattress, and then straddled her, cocked the gun, and put it in his mouth. He asked her how she "was going to feel when he blew his brains out on the ceiling." RP at 216. Horn subsequently took the gun out of his mouth and pointed it at Oubre's head. He told her that she was "going to go to heaven or hell tonight, whichever one [she] deserve[s]." RP at 218-19. As Horn locked the door to the master bedroom, he repeatedly said that they were both going to die. Oubre believed Horn and felt like her life was going to end that night. Oubre got up and tried to leave, but Horn stopped her by pushing her onto the floor and by punching and kicking her. Eventually, Oubre was able to coax Horn to lay down and fall sleep.

         While Horn was asleep, Oubre left and went to the hospital where her extensive injuries were treated. She spoke with the police while at the hospital, and Horn was then arrested.

         Among other offenses, Horn was charged with domestic violence felony harassment based on the August incident. Horn posted bail on August 20, 2015. Oubre and Horn got engaged on September 5 and took a trip together. Horn was later charged with violating a no-contact order, [1] to which he pled guilty in district court. As part of the events related to that charge, videotape evidence showed Horn naked while jumping on top of Oubre's car.

         Before trial on the felony harassment charge, the State sought to introduce evidence of the January 2015 incident under ER 404(b) to show that Horn's threat to kill Oubre in August 2015 placed her in reasonable fear that the threat would be carried out. One of the elements of felony harassment is that the victim be placed in reasonable fear that a threat will be carried out. RCW 9A.46.020(1)(a)(i), (b), (2)(b)(ii).

         The defense objected and in the alternative argued that if the State was permitted to introduce this evidence, the defense should be able to introduce evidence of Oubre and Horn's engagement and trip after August 2015. In the defense's view, this evidence showed that Oubre did not have a reasonable fear that Horn would carry out his threat to kill her on August 7.

         The State opposed the admission of evidence of their engagement and trip because "it triggers a bunch of things, " including Horn's later violation of a no-contact order where he was naked and jumping on top of Oubre's vehicle. RP at 72. The State also did not believe the evidence was relevant to whether Oubre was fearful in August, stating:

The subsequent knowledge does not address the fear on the day of the crime. You can't retroactively apply that fear. The fear has to be at that time, what the victim knew at that point in time.

RP at 73. The defense responded that without this evidence, the jury is left

with the false impression that Mr. Horn is this horrible abuser, and they can't even hear about the fact that even though this allegedly happened, she's going off with him . . ., knowing there's a protective order, having a good time.

RP at 75.

         The trial court first determined that evidence related to the January incident would be admitted because it would "help the jury to determine whether [Oubre] had . . . a reasonable fear or not." RP at 79. However, it declined the defense's ...

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