                                                                              FILED
                                                                      COURT OF APPEALS
                                                                           DIVISION Ii

                                                                    2014 DEC - 2 AN 9: 59

                                                                     STATE OF WASHINGTON
                                       BY
    IN THE COURT OF APPEALS OF THE STATE OF'                                         IINGTON


                                          DIVISION II

 STATE OF WASHINGTON,                                                  No. 44892 -1 - II


                                Respondent,


        v.

                                                                UNPUBLISHED OPINION
 AARON DUKES,


                                Appellant.




       MAxA, J. — Aaron Dukes appeals his convictions for first degree assault with a domestic


violence aggravator and violation of a domestic violence protection order. He argues that ( 1) he

received ineffective assistance of counsel because his attorney did not initially object to the

introduction of evidence about an assault conviction five years earlier involving the same victim,

2) the trial court abused its discretion by admitting details regarding that assault, and ( 3) the trial

court violated his right to present a defense by excluding evidence of the victim' s prior suicide

attempt. We affirm Dukes' convictions.


        Dukes also asks us to remand for correction of his judgment and sentence because it does

not indicate that the trial court dismissed a possession of marijuana charge. Because the .

judgment accurately reflects the outcome of Dukes' trial, we decline to remand for correction of

the judgment.
44892 -1 - II



                                             FACTS


         In January 2012, Dukes assaulted his girlfriend, Wanda Wilson. During an argument,

Dukes pushed Wilson down, punched and kicked her, doused her in rubbing alcohol, and set her

on fire. Wilson was badly burned across her head, face, and torso, resulting in permanent

scarring and nerve damage.

         Wilson initially told police that masked burglars had burned her. However, Wilson

eventually admitted to police that Dukes was responsible for her injuries. Police subsequently

arrested Dukes and found a small quantity of marijuana on his person. During their

investigation, police found a gun at Wilson' s house that belonged to Dukes.


         Dukes was charged with four crimes in connection with the January 2012 incident: first

degree assault with an aggravator for a pattern of domestic violence, violation of a domestic

violence protection order, unlawful possession of a firearm, and possession of marijuana. Dukes


pleaded guilty to the firearm charge. The trial court later granted Dukes' motion to dismiss the

marijuana possession charge.



         This was not the first domestic violence incident between Dukes and Wilson. In August


2007, Dukes severely beat Wilson, dragged her by her hair, and threw her in some bushes.

During that incident, Wilson also had initially refused to incriminate Dukes before eventually

admitting that he was responsible for her injuries. For this prior incident, Dukes was convicted

of second degree assault. The court also issued a domestic violence protection order prohibiting

Dukes from contacting Wilson for 10 years.




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         At trial for the 2012 charge, the State called Wilson to testify. She was perceptibly

distraught and testified that she had difficulty clearly remembering some events. Among other

things, Wilson testified about the 2007 incident:


         STATE: Was there a prior time that Mr. Dukes assaulted you in 2007?
         WILSON: Yeah.
         STATE:     Okay.    And just kind     of  briefly tell us what was - - what was the assault?
         WILSON: I don' t know - -          to this day, I was telling my attorney, I don't know for
         sure if that was Aaron, but they found him in my car, so, you know, I had to figure.
         I don't know.
         STATE: So let me ask you this: What happened to you?
         WILSON: I     got - -    I got beat up, really bad. And I got thrown in some bushes and
         left for dead.


Report   of   Proceedings   at   154 -55.   Dukes' counsel did not object to this testimony. He did object

when the State asked Wilson about her injuries. Dukes' counsel argued that although the fact of


the incident may be relevant, the details were not. The State argued that detailed evidence of the

prior domestic violence was relevant to show that Wilson' s history may have motivated her to

make inconsistent statements about whether Dukes had caused her injuries. The court overruled


Dukes' objection and allowed the testimony.

         The State subsequently introduced, without objection, evidence that Dukes had been

convicted of second degree assault following the 2007 incident. Wilson and investigating

officers testified in detail about the incident and Wilson' s injuries. Before the officers'


testimony, Dukes objected to the introduction of photographs of Wilson' s injuries and related

evidence. The trial court overruled the objections and once again ruled that evidence regarding

the 2007   incident   was admissible.
44892 -1 - II




         On cross -examination, Dukes' attorney asked Wilson whether she previously had been

hospitalized following a suicide attempt. The State objected on grounds that the line of

questioning was `prohibited by ER 404 and also violated the court' s ruling on a pretrial motion in

limine excluding evidence of Wilson' s prior bad acts. The trial court sustained the objection.

         The jury convicted Dukes of assault in the second degree with an aggravating factor and

violation of    the   protection order.   The   assault conviction was   Dukes' " third strike" under


Washington' s persistent offender statute, RCW 9. 94A.570, and he was sentenced to life in prison


without parole. Dukes' judgment and sentence accurately reflected his convictions for firearm

possession, violation of a protection order, and first degree assault, but did not reflect the


dismissal of the marijuana possession charge.


         Dukes appeals his convictions and also requests a remand for the trial court to add the

dismissal of the marijuana possession charge to his judgment and sentence.


                                                    ANALYSIS


A.       ADMISSION OF PRIOR DOMESTIC VIOLENCE EVIDENCE


         Dukes argues that ( 1) he received ineffective assistance of counsel because his attorney

did not object to evidence that Dukes had assaulted Wilson in 2007 and had been convicted of


domestic violence following that incident, and ( 2) the trial court abused its discretion by

admitting evidence regarding the details of the 2007 incident. We reject both arguments.

         1.     Ineffective Assistance of Counsel


         To prevail on his ineffective assistance of counsel claim, Dukes must show that ( 1) his


attorney' s performance was deficient, and ( 2) that deficiency was prejudicial. State v. Grier, 171

Wn.2d 17, 32 -33, 246 P. 3d 1260 ( 2011).          An attorney' s performance is deficient if it falls below


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44892 -1 - II




an objective standard of reasonableness.   Grier, 171 Wn.2d   at   33.   Such deficient performance is


prejudicial if there is a reasonable probability that the result of the proceedings would have been

different in its absence. Grier, 171 Wn.2d at 34. Reasonable probability in this context means a

probability sufficient to undermine confidence in the outcome. Grier, 171 Wn.2d at 34.

         The record shows that even if defense counsel' s performance was deficient in not


objecting to evidence regarding the 2007 incident and conviction, Dukes suffered no prejudice.

Although Dukes' counsel did not initially object to evidence of the 2007 incident, he did object

once Wilson began to testify about the details of that incident. The trial court overruled the

objection, noting that the evidence was important for determining Wilson' s credibility. Counsel

again challenged the admissibility of the 2007 domestic violence evidence when the State

expressed its intention to have the responding officers testify as to the details. Counsel was

again unsuccessful. Nothing in the record indicates that if counsel had objected earlier on the

same grounds the court would have ruled differently.

         Dukes has shown no reasonable probability that the outcome of his trial would have been

any different had his attorney initially objected to Wilson' s testimony about the 2007 incident.

Therefore, we reject Dukes' ineffective assistance of counsel claim.


         2.     Admission of Evidence


         Dukes also argues that the trial court abused its discretion in admitting evidence

regarding the 2007 domestic violence incident. However, as discussed above, counsel did not

object to evidence that the 2007 incident occurred or that Dukes was convicted based on that


incident. Therefore, under RAP 2. 5( a) Dukes cannot challenge the admissibility of that




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44892 -1 - II



evidence. Dukes did object to admission of certain detailed evidence regarding the 2007

incident. We address his argument in that context.

          We review the trial court' s interpretation of ER 404(b) de novo as a matter of law. State

v.   Fisher, 165 Wn.2d 727, 745, 202 P. 3d 937 ( 2009). If the trial court interprets the rule


correctly, we review the decision to admit evidence under ER 404(b) for abuse of discretion.

Fisher, 165 Wn.2d at 745. A trial court abuses its discretion if it fails to abide by the rule' s

requirements. Fisher, 165 Wn.2d at 745.


          Under ER 404( b), "[ e] vidence ofother crimes, wrongs, or acts is not admissible to prove


the    character of a person       in   order   to show action   in conformity therewith." However, this


evidence may be admissible " for other purposes, such as proof of motive, opportunity, intent,

preparation, plan,       knowledge,       identity,    or absence of mistake or accident."      ER 404( b). ER


404(b)' s list of other purposes for which evidence of a defendant' s prior misconduct may be

introduced is    not exclusive.         State   v.   Baker, 162 Wn.     App.   468, 473, 259 P. 3d 270 ( 2011).   ER


404(b) must be read in conjunction with ER 403, which requires the trial to court to exercise its

discretion in evaluating whether relevant evidence is unfairly prejudicial. State v. Gunderson,

No. 89297 -1, 2014 WL 6601061, at * 7 ( Wash. Nov. 20, 2014).


           Before   a   trial   court admits evidence under          ER 404( b),   it must ( 1) find by a preponderance

of the, evidence    that the      misconduct occurred, (      2) identify the purpose for admitting the evidence,

 3) determine the relevance of the evidence to prove an element of the crime, and ( 4) weigh the

probative value of the evidence against its prejudicial effect. Gunderson, 2014 WL 6601061, at

     6. The trial court must complete this ER 404( b) analysis on the record in order to permit the

appellate court to determine whether the trial court' s exercise of discretion was based on careful


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44892 -1 - II




and thoughtful consideration of the issue. Gunderson, 2014 WL 6601061, at * 7. However,

when the record as a whole allows us to decide the admissibility of evidence, a trial court' s

failure to articulate the ER 404( b) balancing process on the record is not reversible error. State v.

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

         Here, the trial court abused its discretion by failing to make the required on- record

findings as to whether the misconduct occurred and whether its probative value outweighed any

unfair prejudicial effect. The trial court identified the purpose of the evidence and addressed its

relevance, but engaged in no further analysis on the record. In addition, the trial court on the


record ruled that this evidence was not inadmissible under ER 403, but without analysis.

Because ER 404( b) requires the entire analysis to be made on the record, the trial court erred.


         But because the record before us is sufficient to determine admissibility, this procedural

error was not reversible error. The record shows that evidence regarding the details of the 2007

incident   was admissible under        ER 404( b). The State did not offer the evidence to show Dukes'


bad character or to establish Dukes' propensity for violence. Instead, the State offered the

evidence to help the jury assess Wilson' s credibility as a witness in light of her inconsistent

statements.




         When the victim' s credibility is at issue, evidence of the defendant' s prior physical abuse

of the victim may be admissible under ER 404(b) to explain the victim' s conduct in reporting

subsequent abuse.     State    v.   Magers, 164 Wn.2d 174, 185, 189 P. 3d 126 ( 2008); Baker, 162 Wn.


App. at 475. As Division One of this court noted in Baker:

           V] ictims of domestic violence often attempt to placate their abusers in an effort
         to avoid repeated violence, and often minimize the degree of violence when
         discussing   it   with others....   The [ victim' s] credibility was a central issue at trial.


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44892 -1 - II




         The jury was entitled to evaluate her credibility with full knowledge of the
         dynamics of a relationship marked by domestic violence and the effect such a
         relationship has on the victim."

162 Wn. App. at 475 ( quoting State v. Grant, 83 Wn. App. 98, 107 -08, 920 P. 2d 609 ( 1996)).

         The trial court recognized the limited purpose of the 2007 incident evidence. The trial


court gave the jury a limiting instruction stating that the jury could consider the evidence only for

the purpose of assessing Wilson' s state of mind and credibility and answering the special verdict

question regarding the aggravating factor. We hold that admitting this evidence for these

purposes was .appropriate.'



         Even though the trial court abused its discretion by failing to conduct the full required on-

record analysis, we decline to reverse because the evidence was admissible. The admitted


evidence was relevant to explain Wilson' s inconsistencies in identifying Dukes as her attacker,

and the trial court' s limiting instruction appropriately curtailed the potential for unfair prejudice.

Therefore, we hold that the evidence was admissible under ER 404( b) and the trial court' s failure

to make the required findings on the record was not reversible error.

         B.      EXCLUSION OF SUICIDE ATTEMPT EVIDENCE


         Dukes argues that the trial court violated his right to present a defense by excluding

evidence of Wilson' s 2007 suicide attempt. He claims that the suicide attempt evidence should


have been admitted because that evidence was necessary to support a planned defense that



1 The trial court also ruled that evidence regarding the 2007 incident was admissible because it
was relevant to the charged domestic violence aggravator. Under former RCW
9. 94A.535( 3)( h)( i) ( 2006),   an aggravating factor was that an offense involved domestic violence
and was " part of an ongoing pattern of psychological, physical, or sexual abuse of the victim
manifested by multiple incidents over a prolonged period of time." Because we hold that the
evidence was admissible on other grounds, we need not address admissibility on this basis.

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44892 -1 - II




Wilson may have been responsible for her own injuries. We hold that this was improper

propensity      evidence     inadmissible    under    ER 404( b), and therefore that the trial court did not


violate Dukes' right to present a defense. 2

         A criminal defendant has a constitutional right to question witnesses and offer evidence


in his defense. State         v.   Jones, 168 Wn.2d 713, 720, 230 P. 3d 576 ( 2010). However, this right is


limited by rules governing the admissibility of evidence. State v. Finch, 137 Wn.2d 792, 825,
975 P. 2d 967 ( 1999);        see also State v. Donald, 178 Wn. App. 250, 263 -64, 316 P. 3d 1081

 2013), review denied, 180 Wn.2d 1010 ( 2014).


         We normally review evidentiary rulings for an abuse of discretion. State v. Williams, 137

Wn.   App.      736, 743, 154 P. 3d 322 ( 2007). But we review de novo claims that a defendant has


been denied his          constitutional right   to   present a   defense. Jones, 168 Wn.2d      at   719. In Donald,


Division One of this court recognized the conflict between these two standards when the

defendant       asserts a constitutional right       to   present a   defense. 178 Wn.   App.   at   255. The court did


not resolve this conflict because it held that the trial court did not err under either standard.


Donald, 178 Wn. App. at 255. We adopt the same approach.




2 Unlike for admission of the 2007 incident evidence, the trial court was not required to conduct
the four -part ER 404( b) analysis on the record to exclude the suicide attempt evidence. Evidence
of prior bad acts is presumptively inadmissible to show conformity with bad character under ER
404( b). State      v.   Gresham, 173 Wn.2d 405, 421, 269 P. 3d 207 ( 2012). The four -part analysis
outlined above applies only where the trial court rules that the offering party has overcome the
presumption of inadmissibility.


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44892 -1 - II




          As discussed   above, under     ER 404( b) "[ evvidence of other crimes, wrongs, or acts is not


admissible to prove the character of a person in order to show action in conformity therewith. "3

Dukes apparently offered the suicide attempt evidence to put forward the theory that Wilson had

set herself on fire.4 Evidence of the suicide attempt at least arguably supports an inference that

Wilson may have attempted to harm herself again in 2012, and therefore that Dukes may not

have been responsible for her injuries. However, this inference would require the jury to infer

that Wilson had a propensity for self h- arm and that she acted in accordance with that propensity.

Under ER 404( b),     propensity evidence of this sort is irrelevant and must be excluded. Therefore,

we hold that evidence of Wilson' s suicide attempt was inadmissible propensity evidence under

ER 404( b).


          Dukes does not specifically address ER 404( b) regarding the suicide attempt evidence,

arguing only that his constitutional right to present a defense requires that the evidence be

admitted. However, Division One of this court after a lengthy analysis rejected an argument that

application of ER 404( b) violated the right to present a defense. Donald, 178 Wn. App. at 258-




3 It could be argued that a suicide attempt is not the type of "bad" act that is inadmissible under
ER 404( b). However, our Supreme Court in State v. Everybodytalksabout held that ER 404( b)
applies to any prior acts used to show that the person acted in conformity therewith, not only acts
that constitute misconduct unpopular or disgraceful. 145 Wn.2d 456, 465 -68, 39 P. 3d 294
 2002).


4 Dukes also seems to indicate that the evidence was offered to impeach Wilson' s credibility.
Testimonial evidence of a witness' s past conduct is relevant for impeachment purposes and
potentially     admissible "   if probative   of   truthfulness   or untruthfulness."   ER 608( b).   But it is
unclear how Wilson' s suicide attempt would have been probative of her truthfulness or
untruthfulness in this case. As a result, the evidence was irrelevant for impeachment purposes
and therefore inadmissible under ER 608.

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272. We agree with Division One. Accordingly, we hold that exclusion of the suicide attempt

evidence did not violate Dukes' right to present a defense.

C.        CUMULATIVE ERROR


          Dukes argues that the cumulative effect of the assigned errors discussed above deprived


him of his right to a fair trial. An accumulation of non -reversible errors may deny a criminal

defendant a fair trial and warrant reversal. State v. Davis, 175 Wn.2d 287, 345, 290 P. 3d 43

 2012). But the defendant bears a burden to show multiple trial errors and that the accumulated


prejudice from those errors affected the outcome of his or her trial. State v. Price, 126 Wn. App.

617, 655, 109 P. 3d 27 ( 2005).       Dukes' argument fails because the trial court' s only error was

failing to conduct the ER 404(b) analysis on the record, and that error is immaterial because

evidence regarding the 2007 assault was admissible.

D.        REMAND FOR CORRECTION OF JUDGMENT AND SENTENCE


          Dukes asks us to remand with directions to the trial court to correct his judgment and


sentence to reflect that the marijuana possession charge against him was dismissed. We may

remand for correction of this sort under certain circumstances. See In re Pers. Restraint of

Mayer, 128 Wn.      App.     694, 701 - 02, 117 P. 3d 353 ( 2005); CrR 7. 8(   a).   But, as we noted in State


v. Davis, we have the discretion not to remand when a judgment fails to list dismissed charges

but accurately    reflects   the defendant'   s convictions.   176 Wn. App. 849, 887, 315 P. 3d 1105

 2013), review granted, 179 Wn. 2d 1014 ( 2014).


          Like the appellants in Davis, Dukes cites no authority showing that remand is warranted

in this   particular situation.   176 Wn. App. at 887. Therefore, we decline to remand for correction

of the judgment to reflect dismissal of the marijuana possession charge.



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44892 -1 - II



         We affirm Dukes' convictions and decline to remand for correction of the judgment.


         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record pursuant to RCW 2. 06. 040, it

is so ordered.




 We concur:




           t'sN, A. L. J.




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