     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 71628-0-1
                     Respondent,
                                                 DIVISION ONE
              v.
                                                 UNPUBLISHED OPINION
DARYL LAMAR BERRY,

                     Appellant.                  FILED: June 15, 2015


       Trickey, J. — Evidence of prior domestic violence committed by a defendant is not

admissible to bolster a complainant's credibility when the complainant has not recanted

or made inconsistent statements. Here, the complainant's credibility had not been called

into question, and the State concedes that the trial court erred in admitting prior bad acts

for credibility.   However, the erroneous admission of ER 404(b) evidence is

nonconstitutional error; and, where, as here, there was no probability that the outcome of

the trial would have been different, the error was harmless. Accordingly, we affirm the

conviction. But because the trial court miscalculated the defendant's offender score, we

remand for resentencing.

                                          FACTS


       Daryl Berry and Jessica Stump were romantically involved for several years and

had two children together. Stump testified that her relationship with Berry made her feel

the happiest and the worst in her life. While testifying, she recounted an incident where

Berry started punching her while driving her and the children. Berry pulled over to the

side of the road, ripped her shirt off over her head, and pushed her out of the car. She

was left on the side of the road with her children. As a result, she obtained a restraining

order against Berry. Stump identified the no contact order admitted at trial as the order
No. 71628-0-1/2


she had obtained. After this March 22, 2013 order, she continued to be friendly because

they had children together.

      Stump had moved to the Burien address in November 2012. This was the

residence Stump and her childrenwere living in at the time the court issued the no contact

order. Stump testified that Berry did not have a key to the apartment.

      On May 2, 2013, Stump was at home when she heard Berry banging loudly on her

door for over 45 minutes. When she thought he had finally gone, she prepared to leave

the apartment. As she opened the door halfway, Berry struck her, knocking her back to

the floor. A struggled ensued with Stump smashing a picture frame over Berry's head.
She was able to open the balcony door and shout outside for help. A passerby dialed

911. Stump's 9-year-old daughter also called 911.

       Deputy Sheriff Benjamin Miller responded to the 911 calls. The deputy separated
Stump and Berry, who was bleeding from his head. The deputy first spoke with Berry
who denied that Stump was the person who had hit him. Berry claimed that the women

who had hit him in the head had run off. The deputy then spoke with Stump who was

crying and upset. He observed marks on her wrists and a big lump behind one of her
ears. Stump told the deputythat Barry had hit her and that she thought she was going to

die. The deputy learned that Stump had a no contact order that Berry had received in

open court on March 22, 2013. The deputy arrested Berry.

       Berry testified that he had resided with Stump at the apartment. He denied
knocking on Stump's door that day and claimed that he entered the apartment with his
own key. Berry denied hitting Stump and claimed that she had no visible injuries when
he left to speak with Deputy Miller. Berry also denied knowing that there was a no contact
No. 71628-0-1/3


order prohibiting him from contacting Stump. He denied that the signature on the no

contact order was his, although on cross-examination he admitted that he had been in

court on March 22, 2013, when the order was issued. Berry stated that it was an "Assault

IV - wasn't even much a DV [(domestic violence)]."1 Berry then testified that it was an

incident in 2002 that provided a basis for a no contact order, not the one at issue here.

Berry then stopped testifying.

      A juryfound Berry guilty as charged of one count of first degree burglary - domestic

violence, based on assault, and one count of felony violation of a no contact order -

domestic violence, based on assault. And in a bifurcated trial, the jury found the State

had proved the aggravating circumstances that Berry had committed the offenses shortly

after being released from incarceration.

       The trial court sentenced Berry to the standard range for both offenses. Berry

appeals.

                                        ANALYSIS


       Berry appeals, contending that the trial court erred in admitting evidence of prior

assaults for the purpose of assessing Stump's credibility when her testimony was

consistent with her complaint. Berry also contends that the trial court improperly added

two points to his offender score in calculating his sentence.

       I. ER 404(b)


       Before trial, the trial court granted the State's ER 404(b) motion to admit evidence

of Berry's prior acts for purposes of assessing Stump's credibility. ER 404(b) provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It

1 7 Report of Proceedings (RP) at 72.
No. 71628-0-1/4


       may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident.


The trial court admitted the evidence to support the credibility of the witness. Under State

v. Gunderson, 181 Wn.2d 916, 337 P.3d 1090 (2014), the State concedes that the trial

court erred in admitting the evidence, but argues that any error was harmless.

       Erroneous admission of evidence is reviewed for nonconstitutional harmless error.

Gunderson, 181 Wn.2d at 926. Improper admission of evidence constitutes harmless

error if the evidence is of minor significance in reference to the overall, overwhelming

evidence and did not affect the outcome of the trial. State v. Jackson. 102 Wn.2d 689,

695, 689 P.2d 76 (1984).

       Here, it is reasonably probable that the admission of the prior domestic violence

did not materially affect the outcome of the trial. The jury heard from both Stump and

Berry as well as the deputy who arrived shortly after the incident. The 911 recording

played to the jury captured a frantic female, crying before the police arrived.

       Deputy Miller's testimony at trial established that the account Stump gave at the

scene was consistent with Stump's testimony at trial. Berry's testimony, on the other

hand, was not corroborated. At the scene, he told the deputy it was someone other than

Stump who had hit him in the head.

       Berry's testimony, unlike Stump's, was replete with contradictions and evasions.

Berry claimed he had a key to the apartment and that the police took it. He told the deputy

that he knew about the no contact order, but testified that he was not aware of it. The no

contact order contained Berry's signature, which was similar to that found on his driver's

license. There was no evidence that he had a key.
No. 71628-0-1/5


       Moreover, Berry's own testimony indicated that he assaulted Stump in 2002.

Further, Berry admitted that he was in court, but that the judge only told him to stay away

from Stump and did not tell him that he could not go to the residence. Given Berry's

erratic testimony and Stump's testimony corroborated by the 911 calls and the deputy,

there is no reasonable probability that the jury's verdict would have been different had the

ER 404(b) evidence not been admitted. Additionally, because the court gave a limiting

instruction on the erroneously admitted ER 404(b) evidence, the jury could only consider

itto weigh Stump's credibility, which was supported by the deputy and the 911 calls. See

State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001) (jury presumed to follow the

instructions).

       II. Offender Score Calculation

       Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, the State bears

the burden of proving the existence of prior convictions by a preponderance of the

evidence. State v. Mendoza, 165 Wn.2d 913, 920, 205 P.3d 113 (2009), disapproved of

on other grounds by State v. Jones, 182Wn.2d 1, 338 P.3d 278 (2014). Where the State

fails to meet its burden and the defendant fails to object, the proper remedy is to remand

for resentencing to allow the State to present evidence of the defendant's prior

convictions. Mendoza, 165 Wn.2d at 930; see also Jones, 182 Wn.2d at 6-11.

       Berry argues that the court erred in assessing two points, one for the misdemeanor

conviction for domestic violence harassment and one for the State's assertion that Berry

committed the current offense while on community custody.

       At sentencing, the State calculated Berry's standard range sentence based on an

offender score of seven for domestic violence - burglary in the first degree. The offender
No. 71628-0-1/6


score included one point for each of Berry's three prior adultfelony convictions: one point

for a 2006 misdemeanor harassment domestic violence conviction; one point for Berry

being on community custody at the time of the current offense; and two points for count
two the "other current offenses" of domestic violence - felony violation of a no contact

order, pursuant to RCW9.94A.525(21)(a).2
       The State concedes that the trial court erred in including a point for Berry's 2006

misdemeanor domestic violence conviction because the misdemeanor conviction

occurred before August 2, 2011.        RCW 9.94A.525(21)(a). We accept the State's
concession that it was error to include the misdemeanor conviction.

       Next, Berry argues that the State failed to sustain the burden of proof to establish
that he was in fact on community custody. Under RCW 9.94A.525(19), if a present

conviction is for an offense committed while the offender was under community custody,

one point is added to the offender score.

       At sentencing, Berry did not acknowledge that he was on community custody when
he committed the offense. Neither did the State provide such evidence. A defendant

waives his right to challenge the State's failure to prove sufficient facts at sentencing only
if that defendant "affirmatively acknowledges" the necessary facts. Mendoza. 165Wn.2d
at 930.     As our Supreme Court stressed there is a "need for an affirmative
acknowledgement by the defendant offacts and information introduced for the purposes
of sentencing." Mendoza, 165 Wn.2d at 928 (emphasis omitted).
       The State agrees that Berry did not explicitly state that he was on community
custody at the time of the offenses, but contends that his presentence report arguing for


2 Clerk's Papers at 100.
No. 71628-0-1/7


an offender score of five was made on grounds other than those appealed and that

argument necessarily included a point for community custody, effectively acknowledging

that he was on community custody at the time of the offense. This was not an explicit

acknowledgment under Mendoza. Thus, the State presented insufficient evidence to

include the point for community custody. Accordingly, we remand for resentencing.

       III. Statement of Additional Grounds

       Berry raises a number of issues in a pro se statement of additional grounds for

relief, none of which have merit.

       First, Berry contends the trial court erred in permitting the State to amend the

information charging him with first degree burglary rather than residential burglary. Under

CrR 2.1(d), the court may permit the amendment of information any time before a verdict

or so long as the defendant is not prejudiced. Berry's counsel in colloquy explained that

her client was not happy to be charged with the amended information, however, the

defense was not impacted by it. Thus, there was no error.

       Berry next argues that the admission of the 911 recording, when the caller was not

present to testify, violated his Sixth Amendment right to confront his accuser under

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). But

under State v. Davis, 154 Wn.2d 291, 111 P.3d 844 (2005), where circumstances, as

here, indicate that the primary purpose of the 911 calls were to enable police assistance

to meet an ongoing emergency, such statements are nontestimonial.               Since the

determination of whether or not such statements are testimonial is a factual question, we

review their admission under an abuse of discretion standard. State v. Shafer, 156 Wn.2d
No. 71628-0-1/8


381, 395,128 P.3d 87 (2006). Under the circumstances here, the trial court did not abuse

its discretion.

       Berry also contends that he was denied the right to interview the complainant in

this case. However, although there was some difficulty in arranging time within which

defense was afforded the opportunity to interview the complainant, it did in fact occur.

Nor is there any merit to Berry's contention that the trial court erred in not dismissing the

case because the complainant was unavailable to testify at the specific time set by the

prosecution.

        Berry next claims that he was not able to cross-examine the deputy. But his

counsel specifically chose not to do so. Such a decision is a trial tactic and does not

constitute grounds for a claim of ineffective assistance of counsel.         In re Personal
Restraint of Stenson, 142 Wn.2d 710, 735, 16 P.3d 1 (2001).

        Berry claims that he did not comprehend the proceedings; however, his objection
rests primarily on the court's refusal to dismiss the case when the complainant witness
was unable to show up at 9:00 a.m. This delay in the start of a witness testimony is

insufficient to constitute grounds for a mistrial. A trial court's decision to deny a motion

for a mistrial is reviewed for an abuse of discretion and will not be overturned unless its

decision is manifestly unreasonable or based on untenable grounds. State v. Wade,

Wn. App.       , 346 P.3d 838, 850-51 (2015). Here, Berry can show no prejudice and thus

the trial court did not abuse its discretion.

        Berry also claims that he did not understand the proceedings and the nature ofthe
charges against him. The issue of Berry's incompetency first arose when the State sought
to introduce a letter purportedly written by Berry and sent to Stump. The lettercontained


                                                8
No. 71628-0-1/9


information that was in the plea negotiations and the issue of his residence at the

apartment. Berry became agitated and somewhat combatant with the court repeatedly

requesting that Berry stop speaking and to sit down so that his counsel could be heard.

Berry agreed to sit and let his attorney speak, but continued to be disruptive. The court

ruled in Berry's favor but he refused to settle down so the court could recess. Once Berry

was removed, the court recessed.

      The next day before presenting its case, defense counsel moved for a mistrial

based on Berry's incompetency. The trial court denied the motion. RCW 10.77.060(1 )(a)

requires a competency hearing whenever there is "reason to doubt" a defendant's

competency. A trial court's decision on whether to order a competency examination is

reviewed for an abuse of discretion. State v. Heddrick, 166 Wn.2d 898, 903, 215 P.3d

201 (2009). A trial court abuses its discretion when its decision is arbitrary or is based

upon untenable grounds or made for untenable reasons. State v. McDonald, 138 Wn.2d

680, 696, 981 P.2d 443 (1999). "The determination that an accused is competent to stand

trial is within the discretion of the trial court, and will not be reversed on appeal absent

manifest abuse of discretion." State v. Hanson, 20 Wn. App. 579, 582, 581 P.2d 589

(1978).

       Here, Berry testified on his own behalf. His testimony on direct examination was

coherent and demonstrated that he was aware of what had happened at the residence,

although he disagreed with the State's version of events. On cross-examination, Berry

began to exhibit the combative pose taken earlier. At the conclusion of his testimony,

defense counsel again moved for a mistrial on the basis of Berry's inability to understand

the proceedings since the State amended the charges to first degree burglary. The trial
No. 71628-0-1/10


court denied this motion. On the record before us, we cannot say that it was an abuse of

discretion.

       Berry also claims that he was denied due process because he was not present

during certain parts of the proceedings. Before closing arguments were presented to the

jury and while the court was undertaking administrative tasks outside the presence of the

jury, Berry became combative and continued to speak over his attorney and the judge,

demanding that he be given an opportunity to testifyto the jury. Berryhad already testified

on his own behalf.

       Berry demanded to be taken out of the courtroom. Defense counsel objected to

Berry's absence again arguing he was incompetent. The court noted that Berry's intent

was to disrupt the proceedings and that he had been repeatedly warned. In the end it

was Berry himself who chose to absent himself from the proceedings.

       The trial court then instructed the jury and the State gave its closing argument

outside of Berry's presence. Atthe conclusion ofthe State's argument,the courtrecessed

affording defense counsel an opportunity to confer with her clientwho still refused to come

to court. Berry was afforded multiple opportunities to come to court but chose not to do

so. When the jury rendered its verdict, Berry was still absent.

       The right to be present at trial is not absolute and where a defendant's behavior

has been persistently disruptive, a defendant in effect voluntarily waives the right to be

present. State v. Chappel, 145 Wn.2d 310, 318, 36 P.3d 1025 (2001). Here, Berry was

repeatedly warned that his behavior would not be tolerated and that court would not

continue while he was acting that way. The trial court's decision to continue the trial in




                                            10
No. 71628-0-1/11


Berry's absence was constitutionally permissible. See Illinois v. Allen, 397 U.S. 337, 345-

46, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).

       Finally, Berry relies on matters outside the record to make his claim that his

attorney provided ineffective assistance for failing to investigate evidence regarding his

mental health. As such, this claim cannot be considered on a direct appeal. State v.

McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (the court will not review matters

outside of the trial record on direct appeal).

       IV. Conclusion

       Because the admission of the ER 404(b) evidence was harmless and Berry's

claims in his statement of additional grounds have no merit, we affirm the convictions.

But because the trial court miscalculated the offender score, we remand for resentencing.




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