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                                                           -OURTjDF APPEALS DiV
                                                            biATbCF WASHINGTON
                                                            2013 NOV 18 AHI0.-5U




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON ,
                                                         No. 68605-4-1
                       Respondent,
                                                         DIVISION ONE
                v.

                                                         UNPUBLISHED OPINION
MICHAEL J. KELLY,

                       Appellant.                        FILED: November 18, 2013


          Appelwick, J. — Kelly appeals his conviction for second degree assault. He first

argues that the trial court violated his Fourteenth Amendment right to due process by

relieving the State of its burden to disprove self-defense. He also argues that allowing

police officers to testify that they received no response when they knocked on Kelly's

door without a warrant violated ER 402, ER 403, and the Fourth Amendment.                 We

affirm.

                                           FACTS

          On the night of April 12, 2008 Michael J. Kelly went to the home of his estranged

girlfriend, Sheryl Hinds.    Kelly discovered Hinds asleep in bed with Randy Becktell,

whom she was dating at the time. There is dispute over what happened next.

          Kelly recalls Becktell saying, "[Y]ou're dead," as he reached for what Kelly

thought was a weapon. Kelly testified that he slapped at Becktell's arms to stop him,

and then left the room. According to Becktell, however, he woke up to Kelly standing
No. 68605-4-1/2




over him and extreme pain in his face. Becktell further testified that before he could do

anything, he saw Kelly swinging to punch him again, and then he lost consciousness for

15 to 20 minutes.


        By the time Becktell regained consciousness and called the police, Kelly had left.

Officers went to Kelly's house and knocked on the door, but no one answered. Officer

Adam Vermeulen went back to take statements from Becktell and Hinds, while Officer

James Wellington went to get a search warrant. He returned with the warrant around

3:30 a.m., and the officers again knocked on the door. Again receiving no answer, they

entered a sun room off of Kelly's kitchen.

        Kelly testified that after he left Hinds's house, he went for a walk before returning

home.     He had been home from his walk for about 10 minutes when he noticed

movement outside the sun room. He stepped out into the sun room where he met the

officers. The officers then placed Kelly under arrest. Officer Wellington testified that

Kelly was polite and cooperative. Kelly was charged with second degree assault.

        Kelly moved in limine to suppress testimony about his failure to answer the door

and any testimony characterizing Kelly's actions as fleeing the scene. The prosecutor

objected, arguing that Kelly's failure to answer the door was evidence of flight

suggesting consciousness of guilt.

        The court ultimately allowed testimony about the officers' investigation, including

the initial door knock, for "completion of the story and for res gestae," but not for

consciousness of guilt. At trial, Officers Vermeulen and Wellington both testified that

when they knocked on Kelly's door, they received no response.               The prosecutor

referred to this during closing as well, noting the two hours the officers spent in the
No. 68605-4-1/3




neighborhood and knocking on Kelly's door.          Kelly was convicted as charged.        He

appeals.

                                        DISCUSSION


  I.   Self-Defense Instruction


       Kelly argues that the trial court violated his right to due process by failing to

instruct the jury that the State bore the burden of disproving self-defense. Kelly did not

request a self-defense instruction at trial.

       We may refuse to hear any claim of error that was not raised at trial. RAP 2.5(a).

Kelly thus waived the issue absent manifest constitutional error. See RAP 2.5(a)(3).

Under this standard, the defendant must show that the alleged error is truly of

constitutional dimension, and that it actually affected his rights at trial. State v. Kirkman,

159 Wn.2d 918, 926-27, 155 P.3d 125 (2007). If we determine that the claim raises a

manifest constitutional error, it may still be subject to harmless error analysis, jd. at

927.


       Kelly argues that his testimony presented evidence that raised the issue of self-

defense, warranting an instruction. When self-defense is properly raised, due process

requires the State to disprove it beyond a reasonable doubt. See State v. Kvllo, 166

Wn.2d 856, 862, 215 P.3d 177 (2009). To properly raise self-defense, a defendant

need only produce any evidence tending to prove that the act was done in self-defense.

State v. Adams. 31 Wn. App. 393, 395, 641 P.2d 1207 (1982). However, the defendant

bears the initial burden of presenting enough evidence to establish a prima facie case of

self-defense. State v. Janes. 121 Wn.2d 220, 237, 850 P.2d 495 (1993).
No. 68605-4-1/4




      A defendant presents a prima facie case of self-defense with evidence that (1) he

subjectively feared that he was about to be injured; (2) his belief was objectively

reasonable; (3) he used no more force than necessary; and (4) he was not the

aggressor.   State v. Callahan. 87 Wn. App. 925, 929, 943 P.2d 676 (1997).               An

instruction not supported by evidence of each element is improper.            See State v.

Goqolin. 45 Wn. App. 640, 643, 727 P.2d 683 (1986).

       Courts properly refuse to give self-defense instructions where the defendant's

story is inconsistent with self-defense, even if the defendant's testimony contains

elements of self-defense.      See id     In Gogolin, the defendant was charged with

assaulting his ex-wife. 45 Wn. App. at 641. He testified that she attacked him and that

he was just trying to get away from her when he raised his hands to push her off of him.

id. at 642. He did not know if he actually touched her, but she fell backward down the

stairs. Id. The trial court refused to give a self-defense instruction. ]dat643.

       On appeal, the defendant claimed that he was denied due process because his

testimony presented some evidence of self-defense. Id. We affirmed, observing that

the defendant's testimony was not that he used force against his wife, but that she fell

accidentally, ]d 643-44. That testimony did not support a self-defense instruction, so

we held that the trial court properly refused to give one. jd.

       Kelly contends that his testimony about Becktell threatening him and reaching for

what could have been a weapon presented some evidence of self-defense, entitling him

to a self-defense instruction. Kelly testified that, fearing injury, he slapped at Becktell's

arms. But, Kelly specifically denied punching Becktell's face, which was the basis of the
No. 68605-4-1/5




assault charge. Like the defendant in Gogolin, Kelly's denial prevents him from making

out a prima facie case of self-defense.

          Because Kelly failed to properly raise self-defense, due process did not require

the State to disprove it. No jury instruction was required. The absence of such an

instruction was thus not of constitutional magnitude, so we decline to review this

assignment of error.

 II.      Evidentiary Ruling

          Kelly next argues that the trial court violated ER 402,1 ER 403, and the Fourth
Amendment by allowing Officers Vermeulen and Wellington to testify that they received

no response when they first knocked on Kelly's door.

          An objection must be made at trial to preserve an evidentiary error for appeal.

ER 103. However, the party losing a motion in limine is deemed to have a standing

objection where the court has made a final ruling on the motion, and has not instructed

counsel that further objections will be required during trial. State v. Powell, 126 Wn.2d

244, 256, 893 P.2d 615 (1995).

          Kelly moved in limine to exclude the officers' testimony as irrelevant under ER

401 and unfairly prejudicial under ER 403. He lost, and the trial court did not instruct

him that further objections would be necessary. His assignments of error based on the

rules of evidence were thus preserved for review.




          1 Kelly's pretrial motion argued that the testimony did not meet the definition of
relevance under ER 401.        Irrelevant evidence is inadmissible under ER 402.      While
Kelly did not explicitly cite ER 402 at trial, he clearly sought ER 402's exclusionary
effect.
No. 68605-4-1/6




       However, he raises his constitutional challenge to the trial court's evidentiary

ruling for the first time on appeal, so that challenge, like his self-defense claim, is

subject to RAP 2.5(a).

      A. Fourth Amendment


      The Fourth Amendment protects a person's right not to respond to police officers

knocking at the door without a warrant. See Kentucky v. King.        U.S.    , 131 S. Ct.

1849, 1862, 179 L. Ed. 2d 865 (2011). Kelly contends that the testimony penalized his

exercise of this right. We disagree.

       In State v. Lewis, a police witness testified that he had phone conversations with

the defendant, wherein he told the defendant that "if he was innocent he should just

come in and talk." 130 Wn.2d 700, 702-03, 927 P.2d 235 (1996). The court concluded

that, absent statements by the officer that the defendant refused to talk, or that his

silence implied guilt, the officer's testimony did not comment on the defendant's rights.

]d at 705-06.

      Similarly, the statements Kelly challenges did not comment on his exercise of a

constitutional right. The testimony consisted of a few statements by the officers that

when they first knocked on Kelly's door, they received no response. The officers did not

testify, for example, that Kelly was home and refused to answer the door. Nor did the

prosecutor state in closing that Kelly was hiding from the police.      Moreover, Kelly

testified that he was on a walk when the officers first attempted to contact him. Thus,

according to Kelly, he was not even home to exercise his Fourth Amendment right. As

with his self-defense argument, Kelly's own testimony demonstrates that there was no

error of constitutional magnitude.


                                            6
No. 68605-4-1/7



       B. ER 402 and 403


       Kelly also argues that the officers' testimony was irrelevant and unfairly

prejudicial, so the trial court violated ER 402 and 403 by admitting it. We review a trial

court's evidentiary rulings for an abuse of discretion. State v. Finch, 137 Wn.2d 792,

810, 975 P.2d 967 (1999). A court abuses its discretion when its ruling is "'manifestly

unreasonable, or exercised on untenable grounds, or for untenable reasons.'" State v.

Downing. 151 Wn.2d 265, 272, 87 P.3d 1169 (2004) (quoting State ex rel. Carroll v.

Junker. 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). The appellant bears the burden to

prove an abuse of discretion.    State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39

(1982), reversed on other grounds, 99 Wn.2d 538, 663 P.2d 476 (1983). Even if we find

actual error with an evidentiary ruling, the error only requires reversal if, within

reasonable probability, it materially affected the outcome of trial. See State v. Stenson,

132 Wn.2d 668, 709, 940 P.2d 1239 (1997).

       1. Relevance Under ER 401 and 402

       Evidence is relevant if it has any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.   ER 401.   Irrelevant evidence is not admissible.

ER 402. "The threshold to admit relevant evidence is very low. Even minimally relevant

evidence is admissible." State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002).

       Kelly argues that the officers' comments were not relevant to any material issue.

The State argues that the testimony was relevant because it described the police

investigation.
No. 68605-4-1/8




       The relevance of evidence depends on the circumstances of each individual case

and the relationship between the facts and the ultimate issue.         Davidson v Mun. of

Metro. Seattle, 43 Wn. App. 569, 573, 719 P.2d 569 (1986). In State v. Perez-Arellano,

the trial court allowed officers to testify that they believed a park to be a "'high narcotic

area,'" which was why they were watching it from a nearby building. 60 Wn. App. 781,

782-83, 807 P.2d 898 (1991).       We found the testimony relevant, because it helped

jurors to understand the propriety of police procedures, and the circumstances of the

arrest. ]d at 784. It did not matter that the evidence did not relate to the defendant's

guilt or innocence. ]d

       Here, the officers' testimony passes the low threshold for relevance.            The

testimony did not have to relate to the elements of second degree assault to be

relevant.    As in Perez-Arellano, the testimony helped the jury understand police

procedures. The prosecutor argued that the testimony would explain to the jury that the

officers entered Kelly's home lawfully and why they had to get a warrant. Furthermore,

the prosecutor argued that she needed the testimony to explain the circumstances of

Kelly's arrest and that he was read his rights and chose not to remain silent. The trial

court properly accepted this rationale.

       Because the evidence of the initial door knock described police procedures and

the circumstances leading to Kelly's arrest, Kelly cannot show that the trial court abused

its discretion in accepting its relevance.

       2.   Unfair Prejudice Under ER 403

       Relevant evidence may still be inadmissible if its probative value is substantially

outweighed by the danger of unfair prejudice.        ER 403.    "Evidence is not rendered


                                              8
No. 68605-4-1/9




inadmissible under ER 403 just because it may be prejudicial." Carson v. Fine, 123

Wn.2d 206, 224, 867 P.2d 610 (1994). After all, "nearly all evidence will prejudice one

side or the other." Id


       Kelly argues that the officers' comments prejudiced him, because they implied

that Kelly was evading the police and had something to hide, which could lead the jury

to discredit his testimony.   In Seattle v. Boulanger, we held that the municipal court

violated ER 403 by allowing an officer to testify that he offered a breathalyzer to the

defendant, because the jury might give undue weight to the defendant's implied refusal.

37 Wn. App. 357, 359, 680 P.2d 67 (1984). We stated that a "defendant may have valid

reasons for refusing a test, reasons which do not reflect consciousness of guilt." Jd In

Perez-Arellano, though, we could not say that the officers' repeated descriptions of the

park as a "'high narcotic area'" created prejudice that substantially outweighed the

testimony's usefulness to the jury. See 60 Wn. App. at 785.

       Here, the officers' testimony was not substantially more prejudicial to Kelly than

probative of the circumstances leading to his arrest.         The comments were brief,

innocuous descriptions of a preliminary part of the police investigation, like the

testimony in Perez-Arellano. Even if the jury could have inferred from the comments

that Kelly refused to answer the door, and that he did so with a guilty conscience, Kelly

minimized any potential prejudice. His testimony explained that no one answered his

door because he was not even home, and no one testified to the contrary.

       Kelly has not shown that the probative value of the testimony was substantially

outweighed by the danger of unfair prejudice. The trial court did not abuse its discretion

by admitting the testimony.
No. 68605-4-1/10




       Kelly's due process and Fourth Amendment challenges are not of constitutional

magnitude. And, he has not demonstrated that the officers' testimony was irrelevant or

unfairly prejudicial.

       We affirm.




WE CONCUR:




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