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                                                                       20!*j AUG 25     Ari 10= IJ




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                             NO. 70054-5-1


                     Respondent,                 DIVISION ONE

                     v.



MATTHEW BLAIR SMITH,                             UNPUBLISHED OPINION

                     Appellant.                   FILED: August 25, 2014



       Lau, J. — Matthew Smith appeals his conviction for felony violation of a

no-contact order, charged as a domestic violence offense. He argues that he was

denied a fair trial because the trial court erroneously instructed the jury that domestic

violence is an element of the offense, the court's reasonable doubt instruction diluted

the State's burden of proof, and prejudicial photographs were improperly admitted.
Because Smith failed to show prejudicial error and overwhelming evidence supported

Smith's conviction, we affirm. And because the parties agree that the judgment and
sentence shows an assault conviction that was vacated on double jeopardy grounds,

we remand with instructions to correct the judgment and sentence error.
70054-5-1/2



                                          FACTS


        Matthew Smith and his girl friend, Cassandra Mitchell, were living separately due

to a domestic violence no-contact order entered against Smith on July 30, 2012.

Mitchell, who was pregnant with Smith's baby, was staying at his house while he lived

elsewhere.


        On the evening of October 3, 2012, Mitchell was giving her friend, Tashena

Martin, a tattoo. Despite the no-contact order, Smith came over and they started

drinking. Smith and Mitchell got into an argument. Smith and Mitchell went upstairs,

and Martin fell asleep on the couch. Martin woke up to the sound of breaking glass.

She heard Mitchell say, "He's hurting me" and "[H]e hit me." Report of Proceedings

(Feb. 5 & 6, 2013) (RP) at 152. Martin did not see Smith hit Mitchell, but she heard

"[t]wo things that sounded like a hit with like cursing, calling her names." RP at 152.

Smith ran out the door. Just after midnight, Mitchell called 911 and reported that Smith

had punched her in the stomach and head. Police arrived, and Mitchell was transported

to the hospital by ambulance. Mitchell told the emergency room doctor that she had

been hit in the stomach and head, and she complained of pain during the exam. At the

hospital, Bellingham Police Officer Christopher Brown met with Mitchell, who hand

wrote and signed a statement under penalty of perjury.

        Matthew came to the house he started drinking, after finishing a Bottle of liquor
        we got into a argument he said our baby wasn't his and hit me in the stomach
        when I turned around he also punched me in the back of my head he ran away
        because I told him I was calling the cops

Ex.3.

        Smith was charged by amended information with "FELONY VIOLATION OF A

NO-CONTACT ORDER (DOMESTIC VIOLENCE), COUNT I AND ASSAULT IN THE

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FOURTH DEGREE (DOMESTIC VIOLENCE) COUNT II."1 The information further

alleged that the offenses were "crime[s] of domestic violence, pursuant to RCW

9.94A.030 or; RCW 10.99.020 and RCW 26.50.010." At and prior to trial, Mitchell

recanted her statements about Smith's assault.2 She asserted that Smith never came

to the house on October 3, 2012, and no assault occurred that evening or at any other

time. She claimed that she fabricated the allegations because she wanted to take

revenge on Smith for failing to return her telephone calls.

       The State used Mitchell's written statement and a recording of the 911 call to

impeach her credibility. Over Smith's objection, the trial court also admitted three

photographs of Mitchell depicting shoulder injuries and one photograph showing a

room with property damage and upended items in it. Police took these photographs on

July 30, 2012, after Mitchell reported that Smith assaulted her.3 She later denied this

assault occurred. The trial court admitted the photographs for the limited purpose of

helping the jury assess Mitchell's credibility on whether Smith violated the no-contact

order when he assaulted her on October 3, 2012.

       The jury found Smith guilty as charged, including the domestic violence

allegation. Both to-convict instructions included as an element the domestic violence

allegation. After trial, the trial court granted Smith's motion to dismiss the assault

       1 The assault elevated the no-contact order violation from a misdemeanor to a
felony offense.

       2Although Martin wrote a letter that corroborated Mitchell's recantation, she
testified at trial that the letter was false and that she wrote it because Mitchell told her
to. Mitchell denied this.

       3The Bellingham Municipal Court issued a domestic violence no-contact order
on July 30, 2012, based on this assault allegation. Ex. 2. The present conviction is
based on Smith's violation of this order.
70054-5-1/4



conviction on violation of double jeopardy grounds. Smith appeals his felony violation of

a no-contact order conviction.


                                        ANALYSIS

       To-Convict Instructions

       Smith argues for the first time on appeal that his due process rights were violated

and he was denied a fair trial because the to-convict instructions incorrectly required the

jury to find domestic violence as an element of the offenses.4 He contends that the

repeated use of this "pejorative" and "inflammatory" term throughout the instructions

prejudiced him and denied him a fair trial. We reject Smith's argument on several

grounds.




        4 Under RCW 9.94A.525(21), additional points are added to the offender score
for prior offenses where a domestic violence allegation was pleaded and proven.
Smith's briefing incorrectly cites to RCW 9.94A.535(21). The State pleaded the
domestic violence allegation in order to increase Smith's sentence on any domestic
violence offenses he may commit in the future. Smith does not dispute that the State
must plead and prove that the charged offenses constitute domestic violence crimes for
the purpose of RCW 9.94A.525(21)'s future offender score calculations.
       Mr. Smith recognizes that the statute requires the state to 'prove' the domestic
       violence designation in order to use it to increase punishment in a hypothetical
       future case. If the State seeks a jury finding on whether the offenses constitute a
      domestic violence crime for purposes of RCW 9.94A.535(21), that question can
      be posed in bifurcated instructions, decided after a verdict is returned on the
      underlying offense. State v. Oster. 147 Wn.2d 141, 147, 52 P.3d 26 (2002) (trial
      court did not abuse discretion by bifurcating instructions to require separate
      consideration of a prejudicial element); State v. Monschke, 133 Wn. App. 313, 34-
      35, 135 P.3d 966 (2006) (bifurcation necessary if unitary trial would significantly
      prejudice the defendant). Alternatively, although less desirable, the court could
      sanitize the designation by replacing the pejorative term 'domestic violence' crime
      with a statutorily accurate term such as 'crime against family or household
      member.' Cf. Old Chief v. United States, 519 U.S. 172, 191, 117 S. Ct. 644, 136
     L. Ed. 2d 574 (1997) (requiring acceptance of stipulation if defendant desires to
     sanitize evidence of prior conviction, which is an element of the offense).
Appellant's Br. at 9 n.2. Smith's bifurcation and sanitize approach to deal with the
domestic violence allegation was never raised below.
70054-5-1/5



       First, Smith did not object to these instructions below. Jury instructions not

objected to become the law of the case. State v. Salas. 127 Wn.2d 173, 182, 897 P.2d

1246 (1995). The rule is well settled. "In criminal cases, the State assumes the burden

of proving otherwise unnecessary elements of the offense when such added elements

are included without objection in the 'to convict' instructions." State v. Hickman, 135

Wn.2d 97, 102, 954 P.2d 900 (1998). Here, there is no dispute that the domestic

violence allegation is not a statutory element of the felony violation of a no-contact order

and fourth degree assault offenses. The court included the domestic violence allegation

in the to-convict instructions without objection. These to-convict instructions became

the law of the case. The State pleaded and proved the additional domestic violence

element.

       Smith also fails to demonstrate that the claimed instructional error involves a

manifest constitutional error that may be raised for the first time on appeal under RAP

2.5(a)(3).

       To meet RAP 2.5(a) and raise an error for the first time on appeal, an appellant
       must demonstrate (1) the error is manifest and (2) the error is truly of
       constitutional dimension. Stated another way, the appellant must 'identify a
       constitutional error and show how the alleged error actually affected the
       [appellant's] rights at trial.'

State v. O'Hara. 167 Wn.2d 91, 98, 217 P.3d 756 (2009) (alterations in original)

(citations omitted) (quoting State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125

(2007)). "A constitutional error is manifest if the appellant can show actual prejudice,

i.e., there must be a 'plausible showing by the appellant that the asserted error had

practical and identifiable consequences in the trial of the case.'" State v. Gordon, 172

Wn.2d 671, 676, 260 P.3d 884 (2011) (quoting O'Hara, 167 Wn.2d at 99).
70054-5-1/6



       Here, Smith makes no showing that the domestic violence element implicates a

constitutional interest. He asserts that his due process rights were violated and his trial

was not fair because the trial court did not give bifurcated instructions or use less

prejudicial language in the instructions, such as crime "against a family or household

member."5 Appellant's Reply Br. at 4; see supra note 4. However, "[instructional errors

do not automatically constitute manifest constitutional error." State v. Guzman Nunez,

160 Wn. App. 150, 163, 248 P.3d 103(2011). In the context of limiting the possible

prejudice stemming from evidence of prior convictions, the Washington Supreme Court

has "specifically held that such bifurcation is constitutionally permissible but not

required." State v. Roswell. 165 Wn.2d 186, 197, 196 P.3d 705 (2008). Smith fails to

establish that bifurcated instructions or use of less prejudicial language is

constitutionally required here. For the reasons discussed above, we conclude it is not.

Thus, the alleged error does not implicate a constitutional issue.

       Smith also fails to show that the claimed instructional error is manifest. Essential

to this determination is a plausible showing by Smith that the claimed error had practical

and identifiable consequences at the trial. "In normal usage, "manifest" means

unmistakable, evident or indisputable, as distinct from obscure, hidden or concealed.

'Affecting' means having an impact or impinging on, in short, to make a difference. A

purely formalistic error is insufficient." State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d

251 (1992).

       Smith's instructional error claim is not a manifest error affecting his constitutional

rights. The alleged error here, viewed in the context of the whole trial, was not evident,


       5 See supra note 2.
70054-5-1/7



unmistakable, or indisputable. Smith failed to demonstrate "[s]ome reasonable showing

of a likelihood of actual prejudice . .. ." Lynn, 67 Wn. App. at 346. It is this showing

that makes a manifest error affecting a constitutional right. Lynn, 67 Wn. App. at 346.

       The State pleaded the domestic violence allegation under RCW 9.94A.525 and

was therefore required to prove it. Even without this added element, the State

presented other evidence using the term "domestic violence" without objection from

Smith. For example, the court admitted as an exhibit the domestic violence no-contact

order entered against Smith on July 30, 2012. Ex. 2. The order stated:

       Based upon the certificate of probable cause and/or other documents contained
       in the case record, testimony, and the statements of counsel, the court finds that
       the Defendant has been charged with, arrested for, or convicted of a domestic
       violence offense, and further finds that to prevent possible recurrence of
       violence, this Domestic Violence No-Contact Order shall be entered pursuant to
       Chapter 10.99 RCW.

Ex. 2. It also identifies Smith's relationship with Mitchell as a "[cjurrent or former

cohabitant as intimate partner." Ex. 2. Officer Brown testified that he gave Mitchell

"D.V. [domestic violence] assault risk questions" and a "D.V. pamphlet" as part of the

standard protocol. RP at 133. There is no evidence indicating that the claimed error

may have in fact affected Smith's constitutional rights.6 The claimed error appears to be

purely abstract and theoretical. Smith has failed to point to any practical consequences

       6 Following oral argument and in response to questions regarding review under
RAP 2.5(a)(3), Smith submitted a statement of additional authorities citing O'Hara and
State v. Johnson, 100 Wn.2d 607, 623, 674 P.2d 145 (1983), overruled on other
grounds by State v. Bergeron, 105Wn.2d 1,711 P.2d 1000(1985). O'Hara states,
"[A]ppellate courts should determine on a case-by-case basis whether an unpreserved
claim of error regarding a self-defense jury instruction constitutes a manifest
constitutional error." O'Hara 167 Wn. App. at 101. Johnson states, "[F]ailure to define
every element of the offense charged ... is an error of constitutional magnitude and
nondirection which may be raised for the first time on appeal." Johnson. 100 Wn.2d at
623. Neither opinion changes our analysis in this case.
70054-5-1/8



which resulted from the claimed error. In sum, Smith fails to establish manifest

constitutional error.7

       But even if we assume Smith established a manifest constitutional error, the error

is harmless. A constitutional error is harmless if the appellate court is convinced

beyond a reasonable doubt that the error did not contribute to the verdict obtained.

State v. Brown. 147 Wn.2d 330, 344, 58 P.3d 889 (2002). From our review of the

record evidence, we are persuaded beyond a reasonable doubt that the claimed error

did not impact the verdict.

       A crying and upset Mitchell called 911 minutes after the assault and reported that

Smith hit her in the head and stomach and then left on foot. Mitchell gave 911 Smith's

physical description and the clothing he wore. Police officers immediately recognized

Smith from this description. Mitchell told 911 she had a no-contact order against Smith.

Mitchell's friend Martin is heard on the 911 recording. Martin also told 911 that Smith

came to the house drunk and punched Mitchell's head and stomach. Martin said that

Mitchell had a no-contact order against Smith. At trial, Mitchell denied that Smith had

been at the house and the assault. She admitted under direct examination that she told



       7 Smith relies on State v. Hagler, 150 Wn. App. 196, 208 P.3d 32 (2009). Hagler
is distinguishable. Hagler appealed convictions for promoting prostitution, identity theft,
unlawful firearm possession, and assault. Over objection, the trial court told the jury
about the domestic violence designation for two of the charges and included the
designation in the jury instructions. Hagler. 150 Wn. App. at 199. On appeal Hagler
argued the domestic violence designation is prejudicial and unnecessary. We held the
designation unnecessary, nonprejudicial in some circumstances, and any error was
harmless. Hagler, 150 Wn. App at 202-03. Here, unlike Hagler, Smith failed to object
to the domestic violence designation in the jury instructions and evidence presented at
trial; agreed the State was entitled to plead and prove domestic violence offenses under
RCW 9.94A.525(21), and proposed and received a lesser included instruction
containing the domestic violence designation. But as in Hagler, the claimed error here
is harmless.

                                          -8-
70054-5-1/9



the paramedics Smith punched her on the head and stomach. Mitchell claimed she lied

about Smith's July 30, 2012 assault.8 She also testified at trial that she and Smith are

engaged and planned to marry. Officers arrested Smith when his sister drove him back

to the house within a short time after the assault.

       The emergency room doctor testified that Mitchell stated that she was hit

numerous times with a fist, mostly on the head and stomach, and she also complained

of pain in those areas. The doctor specified that lack of bruising does not prove there

was no assault, as bruising may appear up to 24 hours later. Officer Brown interviewed

Mitchell at the hospital within two hours of the incident. He testified that Mitchell told

him what happened. She provided a written statement to Officer Brown about the

assault that was consistent with the 911 call, the doctor's testimony, and Officer Brown's

testimony. Despite her initial denial about the assault, Martin testified that Smith came

to the house drunk that night, she heard Smith and Mitchell fighting, Mitchell said Smith

hit her on the head and stomach before he fled, and Mitchell convinced her to write a

false letter denying an assault occurred. And when police arrested Smith later that

night, his physical appearance and clothing fit the description that Martin gave to the




       8 The trial record also shows, in response to the State's rigorous cross-
examination, Mitchell provided the jury with a questionable explanation as to why she
"lied" about the July 2012 and October 2012 assaults. For example, as to the July 30,
2012 photographs showing Mitchell's injuries and damage to the home's interior,
Mitchell explained that she lied when she claimed Smith injured her and caused the
property damage. When the prosecutor asked, "[W]hy were the police able to obtain
photographs of your injuries if he never actually assaulted you?" Mitchell replied, "Well,
had those [injuries] from before." When asked about the damaged property and the
television "pushed over on its face," Mitchell replied, "Urn, well, the TV had been like
that for awhile." When asked, "So that's just the way the house normally looks?"
Mitchell replied, "Yeah." RP at 79.
70054-5-1/10



911 dispatcher. As noted above, the court admitted the domestic violence no-contact

order. Smith's challenge to the to-convict instructions fails.9

       Reasonable Doubt Instruction


       Smith next argues for the first time on appeal that the trial court's reasonable

doubt instruction, Washington Pattern Jury Instructions: Criminal (WPIC) 4.01, diluted

the State's burden of proof and denied him a fair trial. The Washington Supreme Court

has directed trial courts to use WPIC 4.01. State v. Bennett. 161 Wn.2d 303, 317, 165

P.3d 1241 (2007). Smith claims that the "abiding belief in the truth" language

encourages the jury to undertake an impermissible search for the truth. We disagree.

State v. Fedorov. 181 Wn. App. 187, 324 P.3d 784 (2014), filed after the close of

briefing, controls. There, we rejected identical claims about the reasonable doubt

instruction made by Smith in this case. We held that WPIC 4.01 accurately states the

law. Fedorov. 324 P.3d at 790.

       Photographs

       Smith next contends the trial court erred by admitting photographs of Mitchell's

injuries and property damage taken by police on July 30, 2012. He argues that the


       9 We also note that the invited error doctrine bars Smith's appeal on this issue.
The invited error doctrine prohibits a party from challenging a jury instruction it
proposed. State v. Gentry. 125 Wn.2d 570, 645, 888 P.2d 1105 (1995). "The doctrine
applies even when the error is of constitutional magnitude." State v. McLovd. 87 Wn.
App. 66, 69, 939 P.2d 1255 (1997). Smith proposed a jury instruction on the lesser
included offense of misdemeanor violation of a no-contact order. The proposed
instruction contained domestic violence as an element of the crime. The trial court gave
this instruction, along with other instructions proposed by the State that contained
domestic violence as an element of the crime. Although inclusion of domestic violence
as an element of the charged crimes apparently originated in the State's proposed
instructions, Smith contributed to the error by requesting an additional instruction that
contained the language he now challenges on appeal.

                                           -10-
70054-5-1/11



evidence was inadmissible because the court failed both to determine whether Smith

actually assaulted Mitchell and to balance the prejudicial impact against its probative

value.10 The State acknowledges the trial court failed to explain its ER 404(b) balancing

analysis on the record but asserts that any error was harmless. We agree.

       Before admitting evidence of other crimes, wrongs, or acts under ER 404(b)

       the trial court must (1) find by a preponderance of the evidence that the
       misconduct occurred, (2) identify the purpose for which the evidence is sought to
       be introduced, (3) determine whether the evidence is relevant to prove an
       element of the crime charged, and (4) weigh the probative value against the
       prejudicial effect.

State v. Thang. 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). The trial court errs when it

does not articulate its ER 404(b) balancing analysis on the record. State v. Bradford. 56

Wn. App. 464, 468, 783 P.2d 1133 (1989). However, "the error is harmless unless the

failure to do the balancing, within reasonable probability, materially affected the

outcome of the trial." State v. Sublett. 156 Wn. App. 160, 196,231 P.3d 231 (2010).

"Evidentiary errors under ER 404(b) are not of constitutional magnitude." State v.

Jackson. 102 Wn.2d 689, 695, 689 P.2d 76 (1984). "[I]n those cases where, from the

record as a whole, the reviewing court can decide issues of admissibility without the aid

of an articulated balancing process on the record, the court should do so." State v.

Gogolin. 45 Wn. App. 640, 645, 727 P.2d 683 (1986).

       First, a preponderance of the record evidence establishes that Bellingham

Municipal Court issued a pretrial domestic violence no-contact order on July 30, 2012,

preventing Smith from contacting Mitchell, quoted in part above. At trial, Mitchell denied



        10 Smith specifically claims, "Mr. Smith was prejudiced by the admission of prior
act evidence that was not established by a preponderance of the evidence, was
irrelevant, and was highly prejudicial." Appellant's Br. at 14 (boldface omitted).
                                          -11-
70054-5-1/12



any prior assaults by Smith, including the July 30, 2012 incident. But she admitted

reporting the July 30, 2012 assault to police and that responding police officers took

photographs of her injuries and the property damage inflicted by Smith. The no-contact

order identifies Smith's full name, date of birth, his signature, Mitchell's full name, and

her date of birth. The order also recites, "Done in open court in the presence of the

Defendant this 30th day of July, 2012." Ex. 2. The court admitted the domestic

violence no-contact order at trial as exhibit 2, without objection.

       On the question of the photograph's relevance, the court admitted it as probative

of Mitchell's credibility. "To be relevant, evidence must tend 'to make the existence of

any fact that is of consequence to the determination of the action more probable or less

probable.'" State v. Foxhoven, 161 Wn.2d 168, 176, 163 P.3d 786 (2007) (quoting ER

401). Mitchell's denial about the two assaults, which she reported to police, raised

material questions about her credibility. "[P]rior acts of domestic violence involving the

defendant and the crime victim are admissible in order to assist the jury in judging the

credibility of a recanting victim . . . ." State v. Magers, 164 Wn.2d 174, 187, 189 P.3d

126 (2008). The trial court also gave a comprehensive oral limiting instruction before

the photographs' admission into evidence:

       Plaintiff's Exhibit No. 6 will be admitted. And let me advise the jury at this point
       that when you view Exhibit 6 and the testimony that you have heard about Exhibit
       6 is before the jury for a limited purpose and that purpose is to help the jury make
       a decision it must make about the credibility of this witness. The purpose and the
       information is admitted only for that purpose and not for the purpose of the jury
       assessing an issue that's not before the jury, which is the issue of what may or
       may not have happened in July, or the reasons for the July 30th order of the
       municipal court the jury's heard discussed in this trial, the reasons why that order
       was issued, those questions are not before the jury and they're not at issue in
       this trial. So you are to consider the information and testimony about the events
       of July 30th only for the purpose of assessing the credibility of this witness.


                                            -12-
70054-5-1/13



RP at 80.


       Before the State's direct examination of Mitchell about the July 30, 2012

no-contact order, the court gave an additional oral limiting instruction.

       I'm going to permit the testimony to establish a context. But I will clarify for the
       jury that the charge involves conduct that allegedly occurred in early October and
       that's the crime that's charged here. So any information heard here about
       background is simply background information and not evidence of a crime that
       hasn't been charged and shouldn't be taken that way.

RP at 31. The court's instruction 18 about Mitchell's July 30, 2012 statements to police

limited that evidence's relevance to her credibility:

              Certain evidence has been admitted in this case for only a limited
       purpose. The evidence regarding Ms. Mitchell's statements to police on July 30,
       2012 must be considered by you only for the purpose of assessing credibility.
       You may not consider it for any other purpose. Any discussion of the evidence
       during your deliberations must be consistent with this limitation.

CP 36. "A jury is presumed to follow instructions given." State v. Brown. 132 Wn.2d

529, 618, 940 P.2d 546 (1997).     Smith points to nothing in the record indicating the jury

disregarded the instruction.

       Even if we assume trial court error in admitting the photographs, the record

summarized above establishes Smith violated the no-contact order and assaulted

Mitchell on the night of October 3, 2012. There is no reasonable probability that the

outcome of the trial would have been affected. Any error in admitting the photographs

was harmless. State v. Carleton. 82 Wn. App. 680, 686-87, 919 P.2d 128 (1996)

(failure to weigh prejudice on the record harmless when the result would have been the

same even if the trial court had not admitted the evidence).11




       11 Smith also argues that cumulative error denied him a fair trial and requires
reversal of his conviction. "Absent prejudicial error, there can be no cumulative error
                                           -13-
70054-5-1/14



       Vacated Assault Conviction

       Although Smith's fourth degree assault conviction was vacated on double

jeopardy grounds, it remains in his judgment and sentence. The parties agree that any

references to the vacated assault conviction should be removed pursuant to State v.

Turner, 169 Wn.2d 448, 464, 238 P.3d 461 (2010) ("To assure that double jeopardy

proscriptions are carefully observed, a judgment and sentence must not include any

reference to the vacated conviction . . .."). Accordingly, we remand to the trial court

with instructions to remove all reference to the vacated assault conviction in the

judgment and sentence.

                                      CONCLUSION

       We affirm Smith's conviction for felony violation of a no-contact order but remand

to the sentencing court to correct the judgment and sentence consistent with this

opinion.




WE CONCUR:




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that deprived the defendant of a fair trial." State v. Saunders. 120 Wn. App. 800, 826,
86 P.3d 232 (2004). Because no errors occurred, there is no cumulative error.

                                          -14-
