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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                               No. 70743-4-


                    Respondent,                                    DIVISION ONE


            v.



FRANCISCO RIOS-THOMAS,                                             UNPUBLISHED


                    Appellant.                                     FILED: November 24. 2014




      Cox, J. - Francisco Rios-Thomas appeals his judgment and sentence for

his conviction of second degree assault. The trial court properly exercised its

discretion when it excluded evidence that the victim of his assault had been

arrested for assault on prior occasions. The State presented sufficient evidence

to support the conviction. And the claims asserted by Rios-Thomas in his

statement of additional grounds do not warrant relief. We affirm.

      On the evening of April 23, 2013, Jena Pay Pay, Rios-Thomas's girlfriend,

met Rios-Thomas in a park near Pike Place Market. The two got into an

argument. They gave conflicting accounts of what happened next.

       Pay Pay testified that she was walking away from the park when Rios-

Thomas ran up to her and punched her in the face. She fought back. Rios-

Thomas punched her again and she fell to the ground. She got up and Rios-
Thomas hit her again. Pay Pay grabbed Rios-Thomas and threw him on the
No. 70743-4-1/2



ground. She started running. She testified that Rios-Thomas then came from

the opposite direction and hit her several more times. At some point, she lost

consciousness.


       Witnesses described seeing Pay Pay on the sidewalk when Rios-Thomas

circled around her and kicked her in the back of the neck. These witnesses also

testified that Pay Pay lost consciousness. When Pay Pay came to, she went to a

nearby restaurant and told them to call the police.

       Based on these events, the State charged Rios-Thomas with one count of

assault in the second degree—domestic violence, and one count of intimidating a

witness. The case proceeded to trial.

       Prior to trial, Rios-Thomas moved in limine to admit evidence of Pay Pay's

previous assaultive arrests. The court reserved ruling on the admissibility of this

evidence. At trial, Rios-Thomas sought to question Pay Pay about these prior

arrests during cross-examination. The court denied this request.

       Rios-Thomas testified on his own behalf. He testified that Pay Pay was

the aggressor, that she threw a bottle at him, and that she "kept hitting [him] so

[he] punched her." He testified that he was afraid and he "just wanted to stop the

threat." He argued that he acted in self-defense. The court granted his request

for a self-defense instruction.

       The jury found Rios-Thomas guilty of second degree assault, and it

answered affirmatively that Rios-Thomas and Pay Pay were family or household

members. The jury found Rios-Thomas not guilty of intimidating a witness.

       Rios-Thomas appeals his conviction for second degree assault.
No. 70743-4-1/3



                              EVIDENTIARY RULING

       Rios-Thomas argues that the trial court "deprived [him] of his constitutional

right to present a defense" when it excluded evidence that Pay Pay had

previously been arrested for assault. He contends that this evidence supported

his defense of self-defense by showing that he "reasonably believed he needed

to strike Pay Pay to prevent further attack." We disagree.

       Both the Sixth Amendment of the federal constitution and article I, section

22 of the state constitution guarantee an accused the right to present a defense.1

But this right is not absolute. A defendant does not have a right to introduce

evidence that is irrelevant or otherwise inadmissible.2

       When a claim of self-defense is raised, the defendant may introduce two

different kinds of evidence concerning the victim's character.3

       First, the defendant may introduce evidence concerning the victim's

reputation for violence.4 "Evidence of a person's character or a trait of character

is not admissible for the purpose of proving action in conformity therewith on a

particular occasion."5 But "[e]vidence of a pertinent trait of character of the victim




       1 State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010).

       2 State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992).

      313B Seth A. Fine & Douglas J. Ende, Washington Practice: Evidence §
3310 (2013-2014 ed.).

       4 State v. Alexander, 52 Wn. App. 897, 900, 765 P.2d 321 (1988).

       5 ER 404(a).
No. 70743-4-1/4



of the crime offered by an accused" is admissible.6 When a defendant asserts

self-defense, evidence of the victim's violent disposition is a pertinent character

trait and is relevant to the issue of whether the victim was the first aggressor.7

       Evidence offered for this purpose "must be in the form of reputation

evidence, not evidence of specific acts."8 "Specific acts may be used to prove

character only where the pertinent character trait is an essential element of a

claim or defense," and "[s]pecific act character evidence relating to the victim's

alleged propensity for violence is not an essential element of self-defense."9

       Second, evidence of the victim's violent actions or reputation may be

admissible to show the defendant's state of mind at the time of the crime and to

indicate whether he had reason to fear bodily harm.10 Thus, a defendant "'may,

in addition to the character evidence, show specific acts of the [victim] which are

not too remote and of which [the defendant] had knowledge at the time of the

[crime] with which he is charged.'"11




       6 ER 404(a)(2).

       7 Alexander, 52 Wn. App. at 900.

       8 State v. Hutchinson, 135Wn.2d 863, 886, 959 P.2d 1061 (1998).

       9 \JL at 886-87.

       10 State v.Cloud, 7 Wn. App. 211, 218, 498 P.2d 907 (1972); State v.
Adamo, 120 Wash. 268, 269, 207 P. 7 (1922).

       11 Cloud, 7 Wn. App. at 218 (quoting Adamo, 120 Wash, at 269).
No. 70743-4-1/5



       For this purpose, evidence of specific acts is admissible.12 "But such acts

. . . may not be shown unless it appears they were brought to the knowledge of

the defendant before he committed the crime charged."13

       The admissibility of evidence is within the sound discretion of the trial

court.14 A trial court abuses its discretion when its decision is manifestly

unreasonable or based on untenable grounds or untenable reasons.15

       Here, the trial court did not abuse its discretion when it denied Rios-

Thomas's motion to admit evidence of specific acts that allegedly resulted in Pay

Pay's arrests for fourth degree assault.

       First, this evidence was not admissible to show Pay Pay's alleged

propensity for violence because the evidence concerned specific acts. Evidence

of a victim's alleged propensity for violence "must be in the form of reputation

evidence, not evidence of specific acts."16 Thus, while Rios-Thomas could

introduce reputation evidence, he could not introduce evidence of prior arrests.

       Second, this evidence was not relevant to Rios-Thomas's state of mind,

because Rios-Thomas failed to show that he knew of these acts at the time that

he assaulted Pay Pay.




       12 State v. Fondren, 41 Wn. App. 17, 25, 701 P.2d 810 (1985).

       13 Adamo, 120 Wash, at 271.

       14 State v. Atsbeha, 142 Wn.2d 904, 913, 16 P.3d 626 (2001).

       15 State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999).

       16 Hutchinson, 135 Wn.2d at 886.
No. 70743-4-1/6



      Prior to trial, defense counsel asked the court to "reserve on admissibility

[of this evidence] unless and until Mr. Rios-Thomas elects to testify." He argued

that Rios-Thomas's testimony would resolve the issue about Rios-Thomas's

knowledge of Pay Pay's prior acts of violence. The State agreed, and the court

reserved ruling on admissibility of this evidence.

       During trial, Rios-Thomas again moved to admit evidence of these specific

incidents during cross examination of Pay Pay. The court denied this request but

indicated that this evidence might later be admissible depending on the nature of

Rios-Thomas's testimony:

       I'm not going to allow it at this point. I don't know if you want to
       consider renewing it but, at this point, I'm not going to allow you to
       cross-examine on arrests. The rule really does require a
       conviction, and even so far as I have heard the testimony, I don't
       really find a basis to allow it. Ijust don't. You may have to think
       about whether you want to recall [Pay Pay] after [Rios-
       Thomas] testifies, should he choose to testify, to really put the
       issue of whether there's reasonable fear or apprehension that
       he might haveP7]
       However, despite the court leaving open the possibility for the admission

of this evidence, and although Rios-Thomas testified, defense counsel did not

question Rios-Thomas about these alleged prior assaultive arrests during his
testimony. Defense counsel also failed to present any evidence that Rios-
Thomas knew of these prior arrests or was present during these incidents.

Consequently, without any evidence establishing Rios-Thomas's prior knowledge
of these incidents, this evidence was not relevant to whether Rios-Thomas had a

reasonable fear that Pay Pay was going to attack him.

       17 Report of Proceedings (July 2, 2013) at 106-07 (emphasis added).
No. 70743-4-1/7



       In sum, because the evidence was inadmissible and irrelevant to the claim

of self-defense, the court properly exercised its discretion when it excluded

evidence of Pay Pay's alleged prior assaultive arrests.

       Rios-Thomas argues that "evidence of the victim's specific earlier acts is

admissible for the limited purpose of showing whether the defendant had a

reasonable apprehension of danger." While this general proposition is true, the

supreme court has expressly stated that such acts "may not be shown unless it

appears they were brought to the knowledge of the defendant before he

committed the crime charged."'18 As just discussed, Rios-Thomas failed to

establish the requisite knowledge for this evidence to be admissible.

       Rios-Thomas contends that the trial court's exclusion of the evidence

violated his constitutional right to present a defense. He argues that he was

"precluded from informing the jury of the relevant circumstances known to him at

the time of the incident." But this is an evidentiary question, not one of

constitutional magnitude. Rios-Thomas presented other evidence in support of

his claim of self-defense, and the trial court granted his request for a self-defense

instruction. He suffered no constitutional violation from this evidentiary ruling.

                        SUFFICIENCY OF THE EVIDENCE

       Rios-Thomas argues that the State failed to prove beyond a reasonable

doubt each element of second degree assault. In particular, he argues that the

State failed to prove that Pay Pay suffered substantial bodily harm. We disagree.



       18 Adamo, 120 Wash, at 271 (emphasis added).
No. 70743-4-1/8



       "The test for determining the sufficiency of the evidence is whether, after

viewing the evidence in the light most favorable to the State, any rational trier of

fact could have found guilt beyond a reasonable doubt."19 "When the sufficiency

of the evidence is challenged in a criminal case, all reasonable inferences from

the evidence must be drawn in favor of the State and interpreted most strongly

against the defendant."20 A claim of insufficiency admits the truth of the State's

evidence and all inferences that reasonably can be drawn therefrom.

       To sustain the conviction for assault in the second degree, the State had

to prove beyond a reasonable doubt that Pay Pay suffered substantial bodily

harm.21 "Substantial bodily harm" is "bodily injury which involves a temporary but

substantial disfigurement, or which causes a temporary but substantial loss or

impairment of the function of any bodily part or organ, or which causes a fracture

of any bodily part."22 "Substantial" is not defined in the statute, but the supreme

court has stated that the term "signifies a degree of harm that is considerable and

necessarily requires a showing greater than an injury merely having some

existence."23

       In State v. McKaque, the supreme court held that evidence of the victim's

concussion, "which caused him such dizziness that he was unable to stand for a

       19 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

       20 id,

       21 RCW9A.36.021(1)(a).

       22RCW9A.04.110(4)(b).

       23 State v. McKaque, 172 Wn.2d 802, 806, 262 P.3d 1225(2011).



                                          8
No. 70743-4-1/9



time, was sufficient to allow the jury to find that he had suffered a temporary but

substantial impairment of a body part or an organ's function."24

       Here, the State presented sufficient evidence to prove that Pay Pay

suffered substantial bodily harm. Like in McKaque, Pay Pay's concussion and

loss of consciousness allowed the jury to find that Pay Pay suffered a bodily

injury which caused a temporary but substantial loss or impairment of the

function of any bodily part or organ. Specifically, Pay Pay temporarily lost the

function of her brain.


       Several witnesses, including Pay Pay herself, testified that Pay Pay lost

consciousness. One witness testified that Pay Pay "tumbled off of the sidewalk"

and "laid there motionless for a minute" before she got up. Another witness

testified that Pay Pay's head "bounced off of the sidewalk," that her "eyes were

funny," and that she "came back to consciousness" when Rios-Thomas kicked

her. The emergency room physician who treated Pay Pay following the assault

testified that she suffered a concussion and a loss of consciousness. The

physician further testified that a concussion is "an injury to the brain that results

in a temporary dysfunction of the brain."

       The physician also testified about potential long-term effects of head

injuries. In particular, she explained that a patient who still has symptoms from a

head injury can have something called "a second hit phenomenon where, if [the

patient] get[s] a second head injury, it could result in some longer lasting or

longer term sequela."

       24 172 Wn.2d 802, 806, 262 P.3d 1225 (2011).



                                            9
No. 70743-4-1/10



       In sum, viewing this evidence in the light most favorable to the State, the

State's evidence was sufficient on the "substantial bodily harm" element of

second degree assault.

       Rios-Thomas compares the injuries in this case to those in several other

cases and argues that "[b]y comparison, Pay Pay's injury was minor."25 He

points out that Pay Pay suffered no broken bones, and the C.T. scan showed no

bleeding in the brain and no skull fracture. Thus, he argues that "[t]he State

failed to establish temporary but substantial disfigurement, or temporary but

substantial loss or impairment of function, or any broken bones."

       But while fractures or bleeding in the brain might be sufficient to show

substantial bodily injury, these symptoms are not necessary to meet the statutory

definition of substantial bodily harm. The cases cited by Rios-Thomas do not

hold otherwise, nor do they hold that the type of injury that Pay Pay experienced

is insufficient to meet the statutory definition. In fact, Pay Pay's concussion injury

was similar to the concussion injury in McKaque, where the supreme court held

the evidence was sufficient. Accordingly, Rios-Thomas's reliance on these cases

is not persuasive.

                     STATEMENT OF ADDITIONAL GROUNDS

       Rios-Thomas advances two arguments in his statement of additional

grounds. Neither has merit.




       25 Brief of Appellant at 13-14 (citing McKaque, 172 Wn.2d at 804-07; State
v. Hoviq, 149 Wn. App. 1,5, 13 202 P.3d 318 (2009): State v. Ashcraft, 71 Wn.
App. 444, 448-49, 859 P.2d 60 (1993)).


                                          10
No. 70743-4-1/11



       First, Rios-Thomas argues that the trial judge "rushed the jury to come to

a verdict on [his] charges stating that if they did not come to a conclusion before

4pm then they would have to come all the way back on Monday July 8th due to

the fourth of July weekend." But a review of the record does not support this

assertion. Thus, we reject this claim.

       Second, Rios-Thomas states that the prosecutor "was reprimanded" for

leading the witness and "attempting to force [the witness] to have a sudden

remembrance of statements." But Rios-Thomas does not make any argument

about this alleged misconduct that this court can review. Accordingly, we do not

consider it any further.

       We affirm the judgment and sentence.                 /?        —p
                                                           d?u.

WE CONCUR:




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