                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           June 11, 2019

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                             No. 51376-5-II

                                Respondent,

         v.

    CLINTON JAMES CALDWELL,                                   UNPUBLISHED OPINION

                                Appellant.

        MELNICK, J. — Clinton Caldwell appeals his convictions for assault in the second degree

and felony harassment, both of which carried domestic violence allegations as defined in RCW

10.99.020.1 The charges arose after Caldwell and a woman went on a date and spent the night

together. During the night, Caldwell became violent.

        Caldwell first argues that the trial court erred in admitting evidence that he lied to the

arresting police officers by telling them that the victim had raped him. He next challenges the

jury’s findings of domestic violence. He argues that insufficient evidence supports the jury’s

finding or, in the alternative, that the statute defining “dating relationship,” RCW 26.50.010(2), is

unconstitutionally vague. Finally, Caldwell argues that the trial court erroneously imposed legal

financial obligations (LFOs).

        We affirm the convictions but remand for the trial court to reconsider the imposition of

LFOs.


1
  Recently, the legislature enacted substantial changes to many statutes to address domestic
violence. LAWS OF 2019, ch. 263. These amendments impacted many statutes cited throughout
this opinion. We cite to the versions of the statutes in effect at the time of Caldwell’s crimes.
51376-5-II


                                             FACTS

       Caldwell met Kaitlin Pappas through an online dating website. They exchanged messages

through the website every day for two weeks. They decided to meet in person and set up a date.

       Caldwell and Pappas met at a restaurant in Sumner. They each ate and had an alcoholic

drink. Afterwards, they decided to go to the Tacoma waterfront. On their way, Caldwell and

Pappas stopped at a bar and had another drink.

       At Caldwell’s suggestion, Pappas parked her car at his house. Caldwell then took Pappas

inside to meet his mother.

       They proceeded to the waterfront area. They took an elevator to a bar on the top floor of a

building. In the elevator, Caldwell kissed Pappas. Caldwell and Pappas went to other bars and

had more drinks. They were seen leaving one of the bars with their arms around each other.

       Caldwell and Pappas then went back to Caldwell’s house. Because they had been drinking,

Caldwell and Pappas agreed that she would spend the night. They went inside, had sexual

intercourse, and fell asleep.

       Pappas awoke to Caldwell peeing on the floor and wall. Caldwell became irritated when

Pappas roused him and told him what he was doing. He then jumped on top of her, grabbed her

by the neck, and began punching and strangling her. While doing so, Caldwell also yelled at

Pappas, threatening to kill her.    Two more incidents of violence occurred before Pappas

successfully escaped Caldwell’s house.

       Once outside the house, Pappas called the police. She ran away, and shortly thereafter, the

police picked her up and took her to the hospital. The police went to Caldwell’s house and arrested

him.




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51376-5-II


       Caldwell appeared intoxicated. He seemed agitated, slurred his speech, appeared to lack

coordination, and smelled like alcohol. The police also noticed what appeared to be urine on the

carpet of Caldwell’s bedroom.

       The police had a ride-along passenger with them. After being placed in the police car,

Caldwell thought this person was Pappas and yelled at her. Caldwell also repeatedly exclaimed

that Pappas had raped him.

       Due to the allegations of rape, the police took Caldwell to the hospital. At the hospital,

Caldwell admitted that Pappas had not raped him.

       The State charged Caldwell with assault in the second degree and felony harassment. Both

charges carried domestic violence allegations.

       Caldwell pleaded not guilty, and the case proceeded to trial. Before trial, Caldwell moved

to exclude, among other evidence, statements made by him that Pappas had raped him. Caldwell

argued that, because the evidence would only be used to prove his intoxication on the night of the

incident, the prejudicial nature of the evidence outweighed its probative value. The court ruled

that the evidence was admissible. Specifically, the court ruled that the evidence was relevant as

to Caldwell’s “intoxicated state and state of mind,” and that its unfair prejudice did not

substantially outweigh its probative value. Clerk’s Papers (CP) at 87.

       In the same order, the court ruled that other statements and actions made by Caldwell to

the police were inadmissible because the unfair prejudice for those pieces of evidence substantially

outweighed their probative value. For example, the court excluded evidence that Caldwell

attempted to kick out the window of the police vehicle while he was claiming that Pappas had

raped him.




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51376-5-II


       Before beginning their deliberations, the court provided the jury with an instruction

defining “dating relationship.” It also instructed the jury on voluntary intoxication.

       The jury found Caldwell guilty of both counts and also returned special verdicts that the

crimes were domestic violence incidents. The court sentenced Caldwell and imposed numerous

LFOs on him, including a $200 criminal filing fee. The court also ordered that interest accrue on

the financial obligations until paid in full. Caldwell appeals.

                                            ANALYSIS
I.     EVIDENCE ISSUE

       Caldwell argues that the trial court abused its discretion in admitting allegations of rape

because the evidence’s “slight probative value . . . was vastly outweighed by its prejudicial

impact.” Br. of Appellant at 10. Caldwell contends that “[t]he testimony was only marginally

helpful in establishing [his] intoxication and anger” and that other evidence sufficiently established

intoxication. Br. of Appellant at 10. Caldwell claims that the evidence was unfairly prejudicial

because it painted him as a liar. We disagree with Caldwell.

       We review trial court decisions to admit evidence for an abuse of discretion. State v. Perez-

Valdez, 172 Wn.2d 808, 814, 265 P.3d 853 (2011). “‘A trial court abuses its discretion if its

decision is manifestly unreasonable or based on untenable grounds or untenable reasons.’” State

v. Scherf, 192 Wn.2d 350, 387, 429 P.3d 776 (2018) (quoting In re Marriage of Littlefield, 133

Wn.2d 39, 46-47, 940 P.2d 1362 (1997)). Additionally, we may uphold a trial court’s decision on

any basis supported by the record and the law. State v. Kelley, 64 Wn. App. 755, 764, 828 P.2d

1106 (1992).

       Under ER 403, relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.” Evidence may be unfairly prejudicial when it

excites an emotional rather than a rational response by the jury or when it promotes a decision on


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51376-5-II


an improper basis. State v. Haq, 166 Wn. App. 221, 261, 268 P.3d 997 (2012). The trial court has

considerable discretion to consider what evidence is relevant and to balance its possible prejudicial

impact against its probative value. State v. Barry, 184 Wn. App. 790, 801, 339 P.3d 200 (2014).

        In admitting evidence that Caldwell claimed Pappas had raped him, the trial court ruled

that the evidence was relevant to show both Caldwell’s level of intoxication and his state of mind.

        Caldwell’s intoxication and state of mind were at issue. Caldwell was charged with assault

in the second degree and felony harassment, and thus, to convict Caldwell the State was required

to prove that Caldwell “intentionally” assaulted Pappas and that he “knowingly” threatened her

while doing so. RCW 9A.36.021; RCW 9A.46.020. Caldwell claimed that he was too intoxicated

to form the requisite intent and asked for a voluntary intoxication jury instruction, which the court

gave.

        Thus, in admitting the evidence, the court recognized that the evidence of Caldwell’s rape

allegation was relevant to show both Caldwell’s intoxication and that he was not so intoxicated

that he could not have “intentionally” assaulted Pappas or “knowingly” threatened her. The court

properly weighed the probative value of admitting Caldwell’s rape allegation against its prejudicial

effect and exercised its discretion to admit this evidence while excluding other evidence.

        For example, the court excluded evidence that, at the time he was claiming that Pappas had

raped him, Caldwell attempted to kick out the window of the police car. This evidence was highly

prejudicial because it was indicative only of Caldwell’s intoxication as it related to aggression, not

his state of mind.

        The court carefully balanced the evidence under ER 403. It excluded the majority of the

evidence regarding Caldwell’s arrest but admitted evidence of Caldwell’s rape allegation and

retraction. The court did not abuse its discretion in admitting this evidence.



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51376-5-II


II.    SUFFICIENCY OF THE EVIDENCE

       Caldwell argues that insufficient evidence supports the jury’s finding that he was in a

“dating relationship,” as was required to establish that his crimes were domestic violence

incidents.2 We disagree.

       To determine whether sufficient evidence supports a conviction, we view the evidence in

the light most favorable to the State and determine whether any rational fact finder could have

found the elements of the crime beyond a reasonable doubt. State v. Engel, 166 Wn.2d 572, 576,

210 P.3d 1007 (2009). “In claiming insufficient evidence, the defendant necessarily admits the

truth of the State’s evidence and all reasonable inferences that can be drawn from it.” State v.

Drum, 168 Wn.2d 23, 35, 225 P.3d 237 (2010).

       RCW 9.94A.525(21) relates to calculating offender scores for felony domestic violence

offenses “where domestic violence as defined in RCW 9.94A.030 was pleaded and proven.”

“Domestic violence” involves crimes, including assault in the second degree, “committed by one

family or household member against another.” RCW 10.99.020(5); see RCW 9.94A.030(20). The

definition of “family or household members” includes “persons sixteen years of age or older . . .

who ha[ve] or ha[ve] had a dating relationship.” RCW 10.99.020(3). RCW 10.99.020(4) provides

that the definition of “dating relationship” is the same as that in RCW 26.50.010.

       Here, the court instructed the jury:

               “Dating relationship” means a social relationship of a romantic nature. In
       deciding whether two people had a “dating relationship,” you may consider all
       relevant factors, including (a) the nature of any relationship between them; (b) the
       length of time that any relationship existed; and (c) the frequency of any interaction
       between them.


2
 Caldwell recognizes that no Washington cases discuss the requisite quality or quantity of contacts
but points to California and Illinois case law for the proposition that it takes more than one date to
establish a dating relationship.


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51376-5-II


CP at 66. The instruction followed the statute. RCW 26.50.010(2).

       Viewing the evidence in the light most favorable to the State, we conclude that a rational

jury could have found that Caldwell and Pappas were in a dating relationship.

       Caldwell and Pappas communicated every day for two weeks through a dating website.

Online dating relationships are becoming increasingly prevalent. When they met for an in-person

date, Caldwell and Pappas went to multiple locations in Pierce County and displayed overt signs

of affection, including holding each other around the waist. Caldwell also introduced Pappas to

his mother. At the conclusion of the evening, Caldwell and Pappas then went to Caldwell’s home

and engaged in sexual intercourse.

       Accordingly, sufficient evidence supports the jury’s finding. Viewing the facts in light of

the three statutory factors, and others, supports the jury’s finding Caldwell and Pappas were in a

dating relationship when Caldwell committed his acts of domestic violence.

III.   VAGUENESS

       Caldwell argues that the statute defining “dating relationship,” RCW 26.50.010(2), is

unconstitutionally vague. We disagree.

       Due process under the Fourteenth Amendment of the United States Constitution and article

I, section 3 of the Washington Constitution requires citizens to have fair warning of what conduct

is prohibited by law. State v. Bahl, 164 Wn.2d 739, 752, 193 P.3d 678 (2008). A statute is

unconstitutionally vague if it (1) “‘does not define the criminal offense with sufficient definiteness

that ordinary people can understand what conduct is proscribed,’” or (2) “‘does not provide

ascertainable standards of guilt to protect against arbitrary enforcement.’” State v. Halstien, 122

Wn.2d 109, 117, 857 P.2d 270 (1993) (quoting City of Spokane v. Douglass, 115 Wn.2d 171, 178,

795 P.2d 693 (1990)).



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51376-5-II


       As discussed above, a “dating relationship” is defined as “a social relationship of a

romantic nature,” and a jury may consider three or more factors when making its determination.

RCW 26.50.010(2).

       In State v. Nguyen, 191 Wn.2d 671, 683, 425 P.3d 847 (2018), the court held that the term

“dating relationship” in a community custody condition does not render the condition

unconstitutionally vague. The court’s analysis involved two parts. The court distinguished the

terms “dating relationship” and “significant romantic relationship” on the basis that the latter

included impermissible “highly subjective qualifiers” like “significant” and “romantic,” while

“dating” is more definite. Nguyen, 191 Wn.2d at 682-83.

       The court also relied on the fact that “dating relationship” is defined in RCW 26.50.010(2).

Nguyen, 191 Wn.2d at 682. According to the court, the definition’s factors allowed persons of

ordinary intelligence to understand what the law proscribes. Nguyen, 191 Wn.2d at 682. Even

though the definition itself contains the word “romantic,” which the court described as an

impermissible “highly subjective modifier,” the court did not so much as hint that, as a result, the

definition was unconstitutionally vague. Nguyen, 191 Wn.2d at 682-83. Similarly, we conclude

that the statute is not unconstitutionally vague.

IV.    LFOS

       Caldwell argues, and the State agrees, that because of the 2018 amendments to the LFO

statutes we should strike the $200 criminal filing fee and interest-accrual provision of his judgment

and sentence.

       We accept the State’s concession and remand for the trial court to reconsider the imposition

of LFOs. On remand, the trial court should consider all of the LFOs in light of the 2018




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amendments to the LFO provisions, LAWS OF 2018, ch. 269, and State v. Ramirez, 191 Wn.2d 732,

426 P.3d 714 (2018).

        We affirm the convictions but remand for the trial court to reconsider the imposition of

LFOs.

        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.




                                                            Melnick, J.

We concur:




        Maxa, C.J.




        Sutton, J.




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