                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                         October 18, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 47489-1-II

                                Respondent,                   UNPUBLISHED OPINION

        v.

 JOSEPH RAYMOND WHEARTY,

                                Appellant.

       BJORGEN, C.J. — A jury returned verdicts finding Joseph Raymond Whearty guilty of

unlawful imprisonment and fourth degree assault. The jury also returned special verdicts finding

that Whearty committed both offenses against a member of the same family or household and

that he committed unlawful imprisonment within the sight or sound of the victim’s minor

children. Whearty appeals his convictions, asserting (1) the trial court erred by failing to give a

unanimity instruction as to the unlawful imprisonment charge, (2) the trial court’s exclusion of

video evidence violated his constitutional right to present a defense, (3) defense counsel was
No. 47489-1-II


ineffective for failing to adequately impeach an alleged victim, and (4) the trial court erred by

failing to admit hearsay evidence under ER 106. We affirm.

                                               FACTS

          Whearty and Chelcie Dalmeny were in a dating relationship and lived together with

Dalmeny’s two daughters, OD and SJ.1 2 Whearty and Dalmeny were involved in mixed marital

arts (MMA) competitions, and both participated in MMA matches during the weekend of

January 24, 2015. Whearty acted as Dalmeny’s corner man3 during her match. Dalmeny won

the match and received several injuries as a result. Specifically, Dalmeny fractured her left hand

and had bruising on both legs and around her eyes.

          Whearty and Dalmeny disagree about the January 27 incidents leading to Whearty’s

charges in the present case. According to Dalmeny, she and Whearty were arguing on the

morning of January 27. Whearty left the house that morning with Dalmeny’s cell phone.

Dalmeny used another cell phone to send Whearty a Facebook message that stated she wanted to

end their relationship. After continuing to argue through Facebook messages, Whearty

eventually stated that he would pack up his belongings. Dalmeny returned to the house that

afternoon and saw that Whearty was still there. Dalmeny told Whearty that she was serious

about breaking up and then left with her daughters. Whearty appeared to be sober when

Dalmeny left the house.



1
    At the time of trial, OD was nine years old and SJ was two years old.
2
    We change the minors’ names to initials to provide confidentiality.
3
 According to trial testimony a “corner man” is the “person that attends to [the fighter] in
between rounds.” Report of Proceedings (RP) at 49.

                                                  2
No. 47489-1-II


         When Dalmeny and her daughters returned to the house later that evening, Whearty

appeared to be intoxicated. Dalmeny told her daughters to play in their room; Dalmeny went to

her room and lay on her bed. Whearty ran in the room, screamed at Dalmeny, put his fist on her

throat, and punched her in the head. SJ jumped on Whearty, and Whearty pushed her away. At

this point, Dalmeny was able to get out from under Whearty. Whearty then kicked Dalmeny,

rolled the mattress on top of her, and jumped on her. Dalmeny got out from the mattress and

picked up SJ. Whearty grabbed SJ and threw her on the bed. He then grabbed Dalmeny and

threw her at a window. He also grabbed and twisted Dalmeny’s wrist. Dalmeny managed to get

ahold of SJ and leave the room. She yelled for OD, grabbed a diaper bag, and attempted to leave

the house. Whearty grabbed the diaper bag and emptied its contents on the floor. Dalmeny tried

to calm Whearty, and his mood fluctuated between “crazy, screaming” to cooperative. Report of

Proceedings (RP) at 66.

         When Dalmeny went to her car,4 Whearty attempted to get the car keys from her purse.

Whearty restrained Dalmeny against the garage with his arm, but relented after Dalmeny

screamed for their landlord. Dalmeny and her daughters got in her car, but Whearty blocked

their exit by lying down and positioning his neck under one of the back tires, stating that

Dalmeny would have to kill him if she wanted to leave. Whearty moved after Dalmeny revved

the engine. As Dalmeny drove down the driveway, Whearty jumped on the car and repeatedly

hit the windshield. The windshield cracked in several spots, and glass hit Dalmeny and the

children. Whearty eventually got off of the vehicle when another vehicle approached.




4
    Whearty’s friend, Sharon Johnson, lent this car to Dalmeny.

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No. 47489-1-II


       Whearty admitted that he and Dalmeny were arguing on the morning of January 27 and

that he took Dalmeny’s cell phone when he left the house. However, in contrast to Dalmeny’s

account, Whearty stated that Dalmeny did not mention breaking up until she came home that

afternoon. Whearty felt confused when Dalmeny asked him why he was still at the house, and

after she left with her children, Whearty became depressed and drank two and a half beers.

Whearty again felt confused when Dalmeny returned that evening and asked why he was still

there. Whearty stated that he did not leave the house, because he and Dalmeny always seemed to

work things out, and that he went in to the bedroom so that he could smoke marijuana with

Dalmeny. According to Whearty, Dalmeny hit him in the face when he grabbed Dalmeny’s pipe.

Dalmeny continued to swing at Whearty, so he grabbed her hands, pushed her, and fell on top of

her. Whearty denied pushing his fist against Dalmeny’s throat, hitting her on the head, twisting

her wrist, throwing her at a window, or wrapping her in a mattress. Whearty struggled with

Dalmeny over the car keys because he was concerned about her driving with her daughters while

high on “pills and weed.” RP at 282. He put his arm against her chest and pushed her to the

ground because she was swinging at him with her left hand. Whearty admitted to jumping on the

car, stating that he did so to prevent Dalmeny from driving with the children while intoxicated.

       Dalmeny drove to a store in Onalaska and called her sister, Sarah Dalmeny. Sarah5 told

Dalmeny that she would meet her at their father’s house. After Sarah and Dalmeny arrived at

their father’s house, they called the police. Lewis County Sheriff’s Deputy Michael Mohr

responded to their call, took a recorded statement from Dalmeny, and photographed her injuries



5
  Because Sarah and Chelcie Dalmeny share a last name, we refer to Sarah by her first name for
clarity.

                                                4
No. 47489-1-II


and the damage to her car, which photographs were later admitted at trial. Later that evening,

Mohr went to Dalmeny’s house and arrested Whearty. On February 19, 2015, the State charged

Whearty by amended information with unlawful imprisonment, second degree assault by

strangulation or suffocation for his alleged conduct against Dalmeny, and second degree assault

with intent to commit a felony for his alleged conduct against SJ.

       Before trial, the trial court held a CrR 3.5 hearing to determine the admissibility of

Whearty’s statements to police. Mohr testified at the CrR 3.5 hearing that Whearty repeatedly

said “he didn’t do anything” while being transported to the jail and again at the jail. RP at 30.

Mohr also testified that while he was being transported to the jail, Whearty stated, “She hit me,

and I’m going to jail.” RP at 35. The trial court ruled that Whearty’s statements were admissible.

       At trial, Whearty and Dalmeny testified consistently with the facts as they recounted

them above. Additionally, both testified extensively about Dalmeny’s MMA training and about

the details of her MMA match on the weekend of January 24. After Dalmeny testified, defense

counsel requested to show the jury a video from her MMA match. Defense counsel argued that

the video was admissible as character evidence under ER 404(a)(2) and ER 405(b) and that the

evidence was necessary to support Whearty’s self-defense claim because the video showed

Dalmeny’s ability to fight. The State argued that the video was not relevant because no evidence

had yet been presented that Whearty acted in self-defense. The State also argued that the video

was highly prejudicial and was cumulative to the testimony regarding her participation in the

MMA match. The trial court agreed with the State and excluded the video evidence, stating:

       The balancing here comes out in favor of excluding this [video]. The fact that she
       was involved in a competition with another woman in a ring where there were rules
       involved has nothing to do with an alleged assault by somebody who weighs 45
       pounds more than her in a situation where there are no rules, when she has an injury

                                                 5
No. 47489-1-II


       that prevents her from fighting back. So, no, I’m not going to allow this. I agree
       with the State on that one.

RP at 167-68.

       During Mohr’s testimony on cross-examination, the following exchange took place:

       [Defense counsel]: In the car did you ask his side of the story?
       [Mohr]:                 No.
       [Defense counsel]: Did he try to give you his side of the story?
       [Mohr]:                 No. He was just screaming and crying.
       [Defense counsel]: He didn’t try to give his side of the story?
       [Mohr]:                 No.
       [Defense counsel]: He didn’t tell you she had hit him?
                [State]:              Objection; calls [for] hearsay.
                [Trial court]:        Sustained.
                [Defense counsel]: I think it goes to impeachment, Your Honor, which
       is . . .
                [Trial court]:        Not like that, it doesn’t. The objection is sustained.
       [Defense counsel]: While he was in the car did Mr. Whearty express some sort
       of disbelief as to why he was in the car and arrested?
                [State]:              Objection; hearsay.
                [Trial court]:        Sustained.
                [Defense counsel]: It’s a yes or no question, Your Honor. I’m not asking
       him to answer what he said.
                [Trial court]:        The objection is sustained. The way that question
       was phrased it does ask for a specific response, so objection’s sustained.
       [Defense counsel]: So you get to the jail and you try to ask him his side of the
       story then, right?
       [Mohr]:                 Yes.
       [Defense counsel]: And just more crying?
       [Mohr]:                 Yes.

RP at 231-32.

       The trial court instructed the jury on fourth degree assault as inferior degree offenses to

Whearty’s second degree assault charges. The jury returned verdicts finding Whearty not guilty

of second degree assault by strangulation or suffocation but guilty of fourth degree assault as an

inferior degree offense to that charge. The jury also returned verdicts finding Whearty guilty of

unlawful imprisonment, not guilty of second degree assault with intent to commit a felony, and

                                                 6
No. 47489-1-II


not guilty of fourth degree assault as an inferior degree offense to the second degree assault with

the intent to commit the felony charge. Additionally, the jury returned special verdicts finding

that Whearty committed unlawful imprisonment and fourth degree assault against a member of

the same family or household and that he committed unlawful imprisonment within the sight or

sound of the victim’s minor children. Whearty appeals from his convictions of unlawful

imprisonment and fourth degree assault. We affirm.

                                            ANALYSIS

                                    I. UNANIMITY INSTRUCTION

       Whearty first contends that the trial court erred by failing to give a unanimity instruction

with regard to his unlawful imprisonment charge because the State alleged several acts that could

have supported a conviction on the charge. Because all of the acts alleged by the State were part

of the same continuous course of conduct, a unanimity instruction was not required and, thus,

Whearty fails to show manifest error allowing him to raise this issue for the first time on appeal.

       Whearty did not request a unanimity instruction at trial, but he argues that he may

challenge the trial court’s failure to sua sponte provide a unanimity instruction under RAP

2.5(a)(3). We disagree.

       RAP 2.5(a)(3) permits this court to address an issue raised for the first time on appeal if

the issue concerns a “manifest error affecting a constitutional right.” A trial court’s failure to

provide the jury with a required unanimity instruction is of constitutional magnitude. State v.

Bobenhouse, 166 Wn.2d 881, 893, 214 P.3d 907 (2009). However, the failure to provide a

required unanimity instruction is manifest only where it had “practical and identifiable

consequences” at trial. State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011) (internal


                                                  7
No. 47489-1-II


quotation marks omitted) (quoting State v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009)).

“Each of these requirements demands that the alleged action, in this case the omission of a

unanimity instruction, in fact be in error.” State v. Locke, 175 Wn. App. 779, 802, 307 P.3d 771

(2013), review denied, 179 Wn.2d 1021 (2014).

       When the State alleges multiple acts that could support a conviction on a single charge,

the jury may convict on that charge only if it unanimously agrees on the particular conduct

underlying the conviction. Locke, 175 Wn. App. at 802. However, where the acts alleged by the

State are part of a continuing course of conduct, no unanimity instruction is required. Locke, 175

Wn. App. at 803. When determining whether the defendant’s multiple acts were part of a

continuing course of conduct, “we evaluate the facts in a commonsense manner, considering (1)

the time separating the criminal acts and (2) whether the criminal acts involved the same parties,

location, and ultimate purpose.” State v. Brown, 159 Wn. App. 1, 14, 248 P.3d 518 (2010).

       Here, the State’s allegations that Whearty unlawfully restrained Dalmeny by (1) pinning

her to the bed, (2) wrapping her in a mattress, (3) taking the diaper bag from her, (4) pinning her

against the ground, (5) placing his neck behind the tire of her car, and (6) jumping on top of her

car were all part of a continuing course of conduct. The alleged acts all took place within a short

time period, and all took place within Dalmeny’s home or just outside the home, involved the

same parties, and were committed to achieve the same objective—to prevent Dalmeny from

leaving her property. Therefore, evaluating the facts in a common sense manner, we hold that

the multiple acts alleged by the State constituted a continuing course of conduct. Whearty thus

fails to demonstrate that the trial court erred by failing to provide a unanimity instruction.




                                                  8
No. 47489-1-II


Accordingly, he fails to show a manifest constitutional error allowing him to raise this claim for

the first time on appeal under RAP 2.5(a)(3).

                                 II. RIGHT TO PRESENT A DEFENSE

       Next, Whearty contends that the trial court’s evidentiary ruling prohibiting defense

counsel from showing the jury a video of Dalmeny’s MMA match violated his right to present a

defense. Again, we disagree.

       A defendant in a criminal trial has a constitutional right to present a defense. State v.

Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992). However, a criminal defendant’s right to

present a defense is not absolute; a defendant seeking to present evidence must show that the

evidence is at least minimally relevant to a fact at issue in the case. State v. Jones, 168 Wn.2d

713, 720, 230 P.3d 576 (2010). 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.

       If the defendant establishes the minimal relevance of the evidence sought to be presented,

the burden shifts to the State “to show the evidence is so prejudicial as to disrupt the fairness of

the fact-finding process at trial.” State v. Darden, 145 Wn.2d 612, 622, 41 P.3d 1189 (2002). A

trial court must then balance “the State’s interest to exclude prejudicial evidence . . . against the

defendant’s need for the information sought,” and may exclude such evidence only where “the

State’s interest outweighs the defendant’s need.” Darden, 145 Wn.2d at 622. We review de

novo a claim that a trial court’s evidentiary ruling violated a defendant’s right to present a

defense. Jones, 168 Wn.2d at 719.




                                                  9
No. 47489-1-II


       Whearty asserts that video evidence of Dalmeny’s MMA match was relevant to his self-

defense claim because the video showed Dalmeny’s ability to fight and inflict injury. Assuming

for the sake of argument that Whearty is correct regarding the video’s relevance, the trial court

nonetheless properly conducted the appropriate balancing test to exclude the video. Whearty’s

need for the information contained in the video was minimal, as there was extensive testimony at

trial describing Dalmeny’s MMA training and the details of her MMA match on the weekend of

January 24. On the other hand, the video was prejudicial in that it showed Dalmeny engaged in

acts of physical violence in a sanctioned MMA fight, a situation entirely removed from

Whearty’s claim that she had suddenly struck him after taking her marijuana pipe. Because the

evidence was sufficiently prejudicial under Darden and the State’s interest in excluding the

prejudicial evidence outweighed Whearty’s need for the information contained in the video, we

hold that the trial court’s ruling excluding the evidence did not violate Whearty’s right to present

a defense. Darden, 145 Wn.2d at 622.

                            III. INEFFECTIVE ASSISTANCE OF COUNSEL

       Next, Whearty asserts that his defense counsel provided ineffective assistance by failing

to adequately impeach Dalmeny (1) with her inconsistent statements about where on her head

Whearty had hit her and (2) about her testimony that her daughters did not exit the car while

Whearty was at a store calling Sarah, which testimony conflicted with Sarah’s and OD’s

testimony that OD had exited the car to purchase something from the store.6 We disagree.



6
 Although Whearty titles this section of his brief, “Defense counsel provided ineffective
assistance in failing to impeach the complaining witness and arresting officer,” he neither assigns
error to the failure to impeach Mohr nor provides any argument on that ground. Suppl. Br. of
Appellant at 16. Accordingly, we do not address it.

                                                 10
No. 47489-1-II


          To demonstrate ineffective assistance of counsel, Whearty must show both deficient

performance and resulting prejudice. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80

(2004). To show deficient performance, Whearty must show that defense counsel’s performance

fell below an objective standard of reasonableness. Reichenbach, 153 Wn.2d at 130. To show

resulting prejudice, Whearty must show a reasonable probability that, but for counsel’s

purportedly deficient performance, the outcome of his trial would have differed. Reichenbach,

153 Wn.2d at 130. If he fails to make either showing, we need not inquire further. State v.

Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).

          Additionally, we strongly presume that counsel’s performance was reasonable and, to

rebut this presumption, “the defendant bears the burden of establishing the absence of any

‘conceivable legitimate tactic explaining counsel’s performance.’” State v. Grier, 171 Wn.2d 17,

42, 246 P.3d 1260 (2011) (emphasis added) (quoting Reichenbach, 153 Wn.2d at 130), cert.

denied, 135 S. Ct. 153 (2014). Ineffective assistance of counsel claims present mixed questions

of law and fact, which we review de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916

(2009).

          Whearty first contends that his defense counsel was ineffective for failing to impeach

Dalmeny about inconsistencies in her statements regarding where on her head Whearty had

allegedly hit her. We disagree. Dalmeny testified on direct examination that Whearty “started

punching me in the back of the head.” RP at 62. Then, on cross-examination, Whearty’s

defense counsel confronted Dalmeny about this testimony during the following exchange:

          [Defense counsel]: Now, when you were on direct examination yesterday, you
          pointed to the top of your head like this. Is that where he hit you, on the top of your
          head?
          [Dalmeny]:              No. It was like here, the back of the head, the side.

                                                    11
No. 47489-1-II


        [Defense counsel]:      Okay. The side behind the ear?
        [Dalmeny]:              Yes.
        [Defense counsel]:      He hit you in the front side of the head?
        [Dalmeny]:              No. It was like here on the back side of the head.
        [Defense counsel]:      But it was the head for sure?
        [Dalmeny]:              Yes.

RP at 145. Defense counsel then confronted Dalmeny about her statement to police that Whearty

had punched her “in the side of the face.” RP at 146. Defense counsel argued during closing

that Dalmeny was not a credible witness in light of her inconsistent statements regarding the

location on her head where Whearty had allegedly hit her. Because defense counsel impeached

Dalmeny about her inconsistent statements, Whearty’s claim that defense counsel was ineffective

for failing to do so lacks merit.

        Next, Whearty appears to argue that his defense counsel was ineffective for failing to

confront Dalmeny about how her testimony had differed from Sarah and OD’s testimony

regarding whether OD had exited the car when Dalmeny called Sarah while parked at a store.

Again, we disagree.

        Dalmeny testified that neither of her daughters had exited the car while she was parked at

the store speaking with Sarah. In contrast with this testimony, OD testified that she exited the

car to purchase a bottle of water for her mother and a hairbrush for herself. Sarah also testified

that, while speaking with Dalmeny, Dalmeny had told her OD was in the store purchasing

something. Although Dalmeny’s testimony differed from that of Sarah and OD, defense counsel

had a legitimate tactical reason for not recalling Dalmeny to confront her about her earlier

testimony. The contrasting testimony was already heard by the jury, and recalling Dalmeny to

confront her about it would only serve to allow Dalmeny to correct her earlier testimony. Rather

than presenting Dalmeny with the opportunity to correct her earlier testimony, defense counsel

                                                 12
No. 47489-1-II


could have conceivably made the tactical decision to let her testimony go uncorrected and then

argue that she was not a credible witness during closing argument. Defense counsel made this

argument at closing, stating:

                But what’s Sarah tell you that [Dalmeny] leaves out? Because she was so
         traumatically disturbed by this event that it was good it didn’t come out from her.
         She stopped at the Justice Store, sent [OD], who is so traumatized by this event
         apparently, sends her into the store and [OD] buys some water for her mom and a
         hairbrush. That’s what Sarah tells you. That’s also what [OD] told you. [OD] told
         you exactly what she went in and bought.

RP at 504-05. Because defense counsel had a legitimate tactical reason for not confronting

Dalmeny with her testimony that OD did not exit the car while at the store, Whearty cannot

demonstrate ineffective assistance on this ground.

                                             IV. ER 106

         Finally, Whearty contends that the trial court erred by sustaining the State’s hearsay

objections when defense counsel sought to elicit testimony from Mohr about what Whearty had

told him while being transported to jail. Specifically, Whearty argues that the trial court was

required to admit the hearsay testimony under ER 106. This argument fails for two reasons.

First, Whearty did not argue at trial that his hearsay statements to Mohr were admissible under

ER 106, and he cannot do so now for the first time on appeal. See, e.g., State v. Guloy, 104

Wn.2d 412, 422, 705 P.2d 1182 (1985) (“A party may only assign error in the appellate court on

the specific ground of the evidentiary objection made at trial.”). Second, ER 1067 applies only to


7
    ER 106 provides:
                 When a writing or recorded statement or part thereof is introduced by a
         party, an adverse party may require the party at that time to introduce any other
         part, or any other writing or recorded statement, which ought in fairness to be
         considered contemporaneously with it.


                                                  13
No. 47489-1-II


written or recorded statements and does not apply to oral testimony. State v. Perez, 139 Wn.

App. 522, 531, 161 P.3d 461 (2007).

         Additionally, Whearty appears to argue that the trial court erred in sustaining the State’s

hearsay objections because Whearty’s statements to Mohr were not hearsay under ER

801(d)(1)(ii).8 Again, Whearty’s argument fails. First, Whearty did not argue at trial that his

statements to Mohr were not hearsay under ER 801(d)(1)(ii) and cannot do so for the first time

on appeal. See State v. Stacy, 181 Wn. App. 553, 568, 326 P.3d 136 (declining to address for the

first time on appeal appellant’s argument that his statements to police were admissible under ER

801(d)(1)(ii)), review denied, 181 Wn.2d 553 (2014). Further, by its terms ER 801(d)(1)(ii) did

not apply to Mohr’s testimony during the State’s case in chief, because Whearty, as the declarant

of the statement sought to be admitted, had not yet testified at trial.

         Therefore, we hold that Whearty has not preserved his specific contentions with the trial

court’s hearsay ruling, and he cannot raise them for the first time in this appeal. Alternatively,

we hold that Whearty’s contentions with the trial court’s hearsay rulings lack merit.

         For these reasons, we affirm Whearty’s convictions of unlawful imprisonment and fourth




8
    ER 801(d)(1)(ii) provides in relevant part:
         (d) A statement is not hearsay, if
         (1) . . . [t]he declarant testifies at the trial or hearing and is subject to cross
         examination concerning the statement, and the statement is . . .
         ii. consistent with the declarant’s testimony and is offered to rebut an express or
         implied charge against the declarant of recent fabrication or improper influence or
         motive.

                                                  14
No. 47489-1-II


degree assault.

        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 in accordance with RCW

2.06.040, it is so ordered.



                                                      BJORGEN, C.J.
 We concur:



 JOHANSON, J.




 LEE, J.




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