                                                                                                                             FILED
                                                                                                                      L 14' lal':
                                                                                                                                    I`
                                                                                                               2014 I
                                                                                                               nnT,
                                                                                                                  r          8 API g: 54
    IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                                   DIVISION II
                                                                                                                        DE
STATE OF WASHINGTON,                                                                     No. 43692 -2 -II


                                       Respondent,


          V.




SYLVIO ALBERT BRAVETTI,                                                          UNPUBLISHED OPINION


                                                ant.




          PENOYAR, J. —            Sylvio Bravetti appeals his conviction for second degree assault

domestic       violence)      for pointing   a gun at   his   adult son       Michael Bravetti. He argues that the trial


court   erred    when    it    excluded   evidence      of    Michael'   s'    violent acts because the evidence was


necessary to establish Sylvio' s state of mind at the time of the assault. Sylvio also argues that his
counsel was ineffective because counsel failed to object and to introduce evidence. We hold that

the trial court properly excluded evidence of Michael' s violent acts that were not directed at
Sylvio and that took place when Michael was a child or teenager because this evidence was

largely    irrelevant and any        probative value          was   outweighed      by   unfair prejudice.   Additionally,

counsel was not ineffective because the failure to object was a trial strategy and the failure to

offer evidence did not affect the trial' s outcome. We affirm.

                                                              FACTS


           On October 3, 2011, Michael and Michael' s six -
                                                          year -old son were living with Sylvio and

Sylvio' s wife, Kathy Bravetti. That morning, Michael was having trouble getting his son ready




  The defendant, the victim, and many of the witnesses share the same last name. For clarity, we
refer   to them   by   their first   names.
43692 -2 -II




for   school.    His son was crying and refusing to get dressed, so Michael yelled at and spanked

him.     Sylvio       and   Kathy   overheard    the interaction    and    became   concerned.       After Michael left,


Sylvio called Michael' s mother, Ruth Bravetti, and told her he was considering calling Child

Protective Services ( CPS) about Michael' s treatment of his son. When Michael arrived at Ruth' s

later that morning, Ruth told him that Sylvio was concerned and was considering calling CPS.
Michael testified that he was upset that Sylvio would call CPS because Sylvio had hit Michael

when he was a child. Ruth testified that Michael said he was going to " beat his father' s face to a

        make     him bleed, going to kill him." 2 Report             of   Proceedings ( RP) at 239.        Michael denied
pulp,


making any threats against Sylvio.

           After Michael left, Ruth called Sylvio to warn him that Michael was upset and that he

had threatened to hurt Sylvio.            Based on Ruth' s warning, Sylvio retrieved a gun from his desk

and placed       it   under a   folder   on   the kitchen table.     He also called Ruth back and asked her to


listen on the line while he talked to Michael.


           Sylvio was sitting in the kitchen when Michael returned. Michael and Sylvio agree that a

confrontation occurred, but they disagree as to what happened during the confrontation. Michael

testified that he and Sylvio talked about Michael' s treatment of his son, then Michael stepped

closer to Sylvio, tapped his chin, and asked him to admit that he had hit Michael when Michael

was               Sylvio then       pulled out a gun and pointed          it in Michael'   s   face. Michael grabbed the
        young.


gun     barrel   and   the two of them        wrestled over   the   gun,   eventually ending up       on   the floor.   After



they fell to the floor, Sylvio agreed to release the magazine and Michael put the bullets in his
 pocket.




                                                               2
43692 -2 -II



         Sylvio testified that Michael               entered    his house    and    began yelling in his face.          Michael


then   slapped    Sylvio,    punched      him in the        chest, and poked    him.      Sylvio said he drew the gun at


that point because he was afraid of Michael and, because of his physical condition, he could not

otherwise      stop Michael'      s assault.      Sylvio agreed that Michael grabbed the gun and that the two


fought over it until Sylvio released the magazine. Both men agreed that Ruth, who was listening

to the scuffle over the phone, called the police on her other line and that the police arrived at

Sylvio' s shortly thereafter.

          The     State   charged        Sylvio      with    first degree    assault (    domestic      violence)     or,   in the


alternative, second        degree    assault (    domestic     violence),    both while armed with a deadly weapon.

Sylvio stated that he would be raising self defense at trial.

          The State filed motions in limine to exclude evidence of Michael' s 2005 arrest for

malicious mischief and assault ( domestic violence) and evidence of Michael' s reputation within

the    family. The State also moved to admit evidence that Sylvio had hit Michael with a back

scratcher      when    Michael      was    a   child.       It argued that this evidence was necessary to explain


Michael' s statements to Ruth on the morning of the assault.

          Sylvio filed      a motion      to   admit evidence of       his   state of mind on       October 3.      Specifically,

he wanted to introduce evidence that Michael ( 1) bit and scratched Ruth when he was a teenager,

 2)    assaulted     another     child   and   his    younger    brother     when   he    was   a   child, (   3) takes a certain


                                                                4) invades                              space, (   5) previously
 defensive      body   posture      during     arguments, (                    others'     personal




 argued    with      Sylvio in the kitchen            and    chased    him   around      the kitchen island, (      6) allegedly


 assaulted     former     girl   friends, ( 7) taunted Sylvio, (        8) threatened Ruth, and ( 9) attempted to hit

 Ruth    with    a   baseball bat.         Sylvio also moved to admit evidence from court pleadings in

 Michael' s custody case and evidence of Michael' s reputation for violence.
                                                                   3
43692 - -II
      2



           The trial court reviewed both parties' proffered evidence and concluded that, while it was

 not possible" to inform the jury about everything Sylvio knew about Michael, it attempted to

                                                          this incident in                   RP (   May 9,    2012)         16.   The
allow enough           family history in     to "   put                       context."                               at




                determined that the                                                be   admissible at   trial: ( 1)   evidence of
trial   court                                following      evidence would




Michael'    s posture      during    arguments, (         2) evidence that Michael invades others' personal space,


 3)     evidence   that Michael        and    Sylvio previously           argued   in the kitchen      around    the island, ( 4)


evidence        that    Sylvio   used    corporeal          punishment       against      Michael (   subject to a limiting

instruction), ( 5)        evidence    that Michael taunted Sylvio, ( 6)                  evidence of Michael' s reputation


within     the community, and ( 7)           specific      instances that    show    aspects of     Michael'   s character.       The



court reserved ruling on the admissibility of evidence that Michael attempted to hit Ruth with a
baseball bat.


           The trial court excluded evidence of (1) Michael' s 2005 arrest because the incident did

not suggest danger to Sylvio and the danger of unfair prejudice outweighed the probative value,

 2) Michael'       s .reputation    in the   family, ( 3) Michael scratching or biting Ruth because the date of

occurrence was           vague   and    the danger         of unfair     prejudice   outweighed       the   probative      value, (   4)


Michael' s assault of another child and his brother because this evidence was irrelevant and the

danger     of unfair prejudice outweighed                 the   probative value, (      5) Michael' s alleged assaults against


former girl friends because the evidence was highly prejudicial and not the type of danger that

would suggest           harm to Sylvio, ( 6) Michael' s threats against Ruth because the evidence was not


 probative, (     7) pleadings from Michael' s custody case because the danger of unfair prejudice

 outweighed the probative value.




                                                                     E
43 692 - -II
        2




         At trial, Michael testified about his relationship with Sylvio. He testified that Sylvio used

to   hit him   and chase    him through the house.             The trial court gave a limiting instruction after this

testimony,      telling the jury that it could consider this evidence only for the purposes of

understanding Michael' s comments to Ruth on October 3 and the prior physical incidents

between Michael          and     Sylvio.   Michael also testified that he hit Sylvio once in the garage when

Michael was about 16.


         Sylvio called several witnesses to testify about Michael' s character and his interactions

with    Sylvio.       Ruth testified       about   her     conversation      with      Michael   on   October 3,    stating that

Michael       was   very angry       and   that    she   felt frightened.        She also testified that it sounded like

                                                               listened          the               October 3.      2 RP at 247.
Michael       was "   beating    up" Sylvio       while she                 on         phone on




Kathy    testified that     she was afraid of            Michael    and    that he     was "   very angry" and disrespectful


toward    both her       and     Sylvio.    2 RP      at   272.      She also testified about Michael and Sylvio' s


previous argument around                the kitchen island.        Sylvio' s son Tony testified about Michael hitting

Sylvio in the       garage when         Michael    was a     teenager.      Tony testified that Michael was " extremely

          and was       hitting   his father   forcefully      and   that   Tony     was scared    for Sylvio. 2 RP at 293.
angry"


Sylvio also testified about the incident in the garage, and he attempted to introduce evidence that,

after   the    garage   fight, Michael      said, "   Just   you wait.      I' m going to get you with a bat while you

are   sleeping." 2 RP       at   294.    The trial court excluded the evidence under ER 403, concluding that

the    relevance      was   slight   and    the    prejudice      great.    Sylvio additionally testified about several

recent instances where Michael was verbally abusive toward him. Sylvio did not try to introduce

 evidence that Michael attempted to hit Ruth with a bat.




                                                                    E
43692 - -II
      2




         The trial court instructed the jury on the lawful use of force. The jury found Sylvio guilty

of   second       degree      assault (   domestic      violence)   while   armed   with   a   firearm.   The trial court


sentenced him to 42 months of confinement. Sylvio appeals.

                                                           ANALYSIS


1.          STATE OF MIND EVIDENCE


          First, Sylvio argues that the trial court erred when it excluded evidence of Michael' s past

violent acts.         He contends that this evidence was necessary to establish his state of mind at the

time   of   the   assault.        Because the trial court reasonably excluded evidence that was irrelevant or

unfairly prejudicial, we affirm.

            A trial    court      has discretion to   admit or exclude evidence.       State v. Neal, 144 Wn.2d 600,


609,     30    P. 3d        1255 ( 2001).        We will not overturn that decision unless it is manifestly

unreasonable or based on untenable grounds or reasons. Neal, 144 Wn.2d at 609 ( quoting State

v. Stenson, 132 Wn.2d 668, 701, 940 P. 2d 1239 ( 1997)).

            A.             Hearsay

            Sylvio first contends that the trial court erred when it excluded evidence based on the

 hearsay      rule.        Most of the evidence that Sylvio argues was improperly excluded was excluded

 based   on relevance and unfair prejudice and not                   hearsay. The only evidence that the trial court

 excluded as hearsay was Sylvio' s testimony about what Ruth told him Michael said on the day of
 the assault. But, even if the trial court erred when it excluded Sylvio' s testimony, the error was

 harmless because this               evidence     was    admitted   through Ruth' s   testimony.      Ruth testified that


 Michael       said    he    was    going to "   beat his father' s face to a pulp, make him bleed, going to kill

 him." 2 RP           at   239.   She also testified that she called Sylvio and told him what Michael had said.

 Sylvio testified that he             received a call     from Ruth   and   that he learned that "[ he]    could   probably
43692 -2 -II




expect a good       beating,"     which caused   him to become " fearful"             after   the   conversation.    2 RP at


333.   Accordingly, the jury had evidence that Sylvio knew about Michael' s threat against him at

the time of the assault and that the threat made him fearful.

          B.        ER 402 and 403


          Sylvio next argues that the trial court erred when it excluded evidence under ER 402 and

403.   Generally, character evidence is inadmissible to prove conformity on a particular occasion.

ER 404( a).        But there is an exception for evidence of the victim' s character offered by the

accused.        ER 404( a)( 2).      In a case where the defendant asserts self defense, evidence of the

                                                                        the defendant'            state              State v.
victim' s      violent   character   may be    relevant   to    show                          s           of mind.




Callahan, 87 Wn.          App.   925, 934, 943 P. 2d 676 ( 1997);       State v. Dyson, 90 Wn. App. 433, 438 -39,

952 P. 2d 1097 ( 1997) ( to establish self defense, the defendant must produce evidence showing


he had      a   good     faith belief in the necessity         of   force   and    this belief      was   reasonable).   The


defendant may offer evidence of the victim' s violent acts only if the acts are not too remote and

if the defendant has knowledge            of   them   at the   time   of    the   assault.    State v. Cloud, 7 Wn. App.

211, 218, 498 P. 2d 907 ( 1972) (         quoting State v. 4damo, 120 Wash. 268, 269, 207 P. 7 ( 1922)).

Evidence offered by a defendant to support a self -
                                                  defense theory must be relevant. State v. Bell,

60 Wn.      App.    561, 564, 805 P. 2d 815 ( 1991) ( citing ER 402).                 And even relevant evidence may


be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

ER 403.


            Sylvio contends that the trial court misapplied ER 403 because it failed to determine

 whether the prejudice was actually unfair and whether it substantially outweighed the probative

 value.     Contrary to Sylvio' s assertions, the record shows that the trial court considered whether

 the evidence of Michael' s past actions was unfairly prejudicial.
                                                                7
43692- 2- 11




           First, Sylvio          argues          that the trial       court      never   used    the       word " unfair"        in its rulings.


Appellant'      s   Br.   at   23.      But the trial          court   specifically       used   the    words " unfair prejudice"            in its


written conclusions of law excluding evidence. CP at 253 -54. Next, Sylvio appears to argue that

the trial court excluded evidence when there was any prejudice and not just unfair prejudice. But

it is clear from the rulings that the trial court recognized that most of the evidence was

prejudicial         and   excluded           only the     evidence       that     was   unfairly.     so.        For example, the trial court


admitted evidence of the recent kitchen island fight between Michael and Sylvio because it noted

that the evidence was only " somewhat prejudicial" when compared to its probative value but it

excluded        evidence         that    a    teenaged Michael bit or                 scratched       Ruth because it           was "   unfair[ ly]

prejudic[      ial]"   when compared to its probative value. RP ( May 9, 2012) at 11; CP at 253.

           Sylvio also focuses on the trial court' s exclusion of Michael' s statements after the fight

with   Sylvio in the           garage.            But the trial court stated that the relevance of these statements was


slight   because the             event       took       place   20     years    ago     and   that there          was    a   danger   of "[ u] nfair




prejudice, confusion of                 the issues,       or    misleading the        jury."     2 RP       at   297.    The trial court applied


the correct standard and came to a reasonable conclusion given the facts.

           Sylvio next argues that the trial court improperly limited the admission of evidence

because it required the evidence to be ( 1) based on Sylvio' s personal knowledge and ( 2) not too

remote     in time.        First, the trial court did not require that the evidence of Michael' s prior acts be

based    on      Sylvio'    s personal            knowledge.           Rather, it concluded that evidence of Michael' s past


assaults and           threats    against other people —               including his 2005 arrest, his alleged assaults against

former      girl       friends,      and     his    alleged      assault     of   another      child    on       the    bus —was irrelevant to


 Sylvio'   s    state     of   mind          at   the    time    of    the   present      assault.      This conclusion is reasonable


                                                  issue. Sylvio                    the target    of   the    excluded        threats and   assaults,
 considering the          evidence at                                  was not
43692 -2 -II




and he fails to show how Michael' s fights with other children or former girl friends suggested

that he    would       harm his father.          Additionally, many of the incidents took place years ago when

Michael     was a child or        teenager.       It was reasonable for the trial court to exclude this evidence as


irrelevant.


           Second, the trial court did not err when it excluded evidence that was too remote in time,

such as    fights       and   threats   from his     childhood and    teenage years.           Washington case law limits


evidence of       the    victim' s violent character       to that   which   is   not   too   remote   in time. See Cloud, 7


Wn.   App.       at    218.   This limitation is logical because evidence must be relevant and a victim' s


actions 20 years before an assault are usually not relevant to the circumstances of a present

assault.    Therefore, the trial court properly recognized that state of mind evidence is limited by

relevance and remoteness and it properly applied those principles here when it excluded

evidence from Michael' s childhood and teenage years.


           C.           Open Door Doctrine


           Finally, Sylvio argues that the State opened the door to evidence that Michael had abused

others when it elicited testimony from Michael that Sylvio had abused him as a child. The open

door doctrine does not apply in this case because evidence that Michael had abused others is not

necessary         to    explain,      clarify,    or contradict evidence that Sylvio had abused Michael.

Additionally, evidence that Michael had abused others is not relevant to an issue at trial.

                O] nce a party has raised a material issue, the opposing party is permitted to explain,

clarify,   or contradict        the   evidence."     State v. Berg, 147 Wn. App. 923, 939, 198 P. 3d 529 ( 2008)




                                                                 9
43692- 2- 11



abrogated on         other grounds        by      State   v.   Mutch, 171 Wn.2d 646, 254 P. 3d 803 ( 2011).                           This


means that otherwise inadmissible evidence may be admissible if a party first " opens the door"

and    the inadmissible        evidence      is   relevant     to   an   issue   at   trial.   State v. Stockton, 91 Wn. App. 35,

40, 955 P. 2d 805 ( 1998).


            Here,    Sylvio fails to show how evidence that Michael had abused others explains,

clarifies, or contradicts evidence                that Sylvio had          abused      Michael     when      Michael     was a child.   At


trial, after Michael testified that Sylvio had hit him as a child, Sylvio argued that he should be

able   to   present evidence of        his relationship             with   Michael        when     Michael    was younger.         But the


trial court allowed Sylvio to present evidence of Michael and Sylvio' s relationship; it limited

only    evidence      regarding Michael'           s relationships with others.                 2 Sylvio failed to offer additional

evidence of Michael and Sylvio' s relationship or explain how evidence of Michael' s

relationships        with    others   relates      to Sylvio allegedly                hitting    Michael     as   a   child.    Further, as


discussed above, evidence of Michael' s abuse of others is not relevant to an issue at trial because

many of the incidents were remote in time and none of the incidents suggested that Michael
would harm his father.


            The trial court carefully considered the character evidence offered by both sides and

reasonably excluded evidence that was remote in time and included parties other than Michael
and     Sylvio      and    admitted   evidence       of   interactions between Michael                  and       Sylvio.      Because this


decision was reasonable, we affirm.




2 The trial court did, however, exclude Michael' s statement to Sylvio 20 years ago that he was
                          Sylvio]             bat               he                               2 RP   at   294.     But the trial court
  going to     get [                with a          while [          was]     sleeping."
 admitted evidence of the fight that preceded the statement and it reasonably concluded that the
 comment was irrelevant and unfairly prejudicial.
                                                                         10
43 692 -2 -II




II.      INEFFECTIVE ASSISTANCE


         Next, Sylvio argues that his counsel was ineffective because counsel failed to object and

failed to introduce        evidence.       But counsel did object to some of the evidence Michael complains


about, and counsel' s failure to object to the remaining evidence can be characterized as trial

strategy. Further, counsel' s failure to introduce evidence was not prejudicial.

         Under the Strickland3 test, the defendant must show that counsel' s performance was


deficient    and   that this deficient       performance prejudiced              him. State v. Thomas, 109 Wn.2d 222,


225 -26, 743 P. 2d 816 ( 1987):               Performance is deficient only if it "[ falls] below an objective


standard of reasonableness."               Strickland, 466 U. S.           at   688.    Performance is not deficient if it is


based   on   legitimate trial strategy          or   tactics.       State v. Hendrickson, 129 Wn.2d 61, 77 -78, 917

P. 2d 563 ( 1996).        To establish prejudice, the defendant must show a reasonable probability that

the deficient      performance       affected     the trial'    s    outcome.          Thomas, 109 Wn.2d at 226 ( quoting

Strickland, 466 U. S.         at   694).     The defendant' s failure to prove either prong ends our inquiry.

Hendrickson, 129 Wn.2d at 78.


         Sylvio first argues that counsel was ineffective because counsel failed to object to

evidence     that ( 1)    Sylvio had   abused     Michael, ( 2)       Kathy had cheated on her previous husband and

  3)   Kathy    obtained     a   protection     order    against      Michael.          But Sylvio' s counsel did object to


 evidence that Sylvio had abused Michael and evidence that Kathy had cheated' on her husband.

 The trial court ruled during pretrial proceedings that limited evidence that Sylvio had abused

 Michael     would   be    admissible.       Sylvio' s counsel objected to the trial court' s ruling multiple times

 throughout the trial.        During cross -examination, the State asked Kathy if she had cheated on her
 husband.       Sylvio'   s counsel objected and          the trial       court sustained    the   objection.   Thus, counsel' s



 3 Strickland v. Washington, 466 U. S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).
                                                                     11
43692 -2 -II




performance was not deficient because counsel objected to evidence that Sylvio had abused

Michael and evidence that Kathy had cheated on her husband.

          Additionally, counsel' s decision to elicit testimony from Kathy regarding the restraining

order and to not object to further questioning concerning' this issue was a legitimate trial strategy.

        testified that           had                               order   because   she was afraid of   Michael.    This
Kathy                      she         sought a   restraining


evidence supports Sylvio' s theory at trial that Michael was dangerous and that Sylvio' s use of

force   on   October 3     was reasonable.    4 Counsel was not ineffective for failing to object.

          Sylvio next argues that counsel was ineffective because counsel failed to offer evidence

supporting his       motions     in limine.     Even assuming that this was deficient performance, Sylvio

fails to show that this performance affected the outcome of the trial.

          The trial court excluded some of Sylvio' s evidence regarding Michael' s past violent acts,

but   none of    the     evidence was    excluded       for lack   of proof.    Instead, the trial court excluded the


evidence because it was irrelevant or the probative value was outweighed by unfair prejudice.

Sylvio fails to show how additional evidence about these instances would have affected the

outcome at      trial.    He does   not argue   that the trial     court misconstrued or     lacked   material   facts;' he


instead argues that the trial court erred in its legal conclusions. Accordingly, he cannot show that

additional evidence would have changed the outcome if offered.



4
    In his heading and assignment of error, Sylvio states that counsel should have objected to
 evidence that the restraining order was dismissed, but in his very brief argument regarding this
 issue he states only that counsel should have objected to evidence that Kathy obtained the order.
 We focus      on   the issues in the     argument rather        than those in the     heading. Additionally, Sylvio
 argues      that the    State   emphasized       the   protection    order    in closing   argument.     But the State

 mentioned the order only once and Sylvio fails to provide any grounds on which counsel should
 have objected to this argument.


    Sylvio does not assign error to any of the trial court' s findings of fact; thus, they are verities on
 appeal. State v. Stevenson, 128 Wn. App. 179, 193, 114 P. 3d 699 ( 2005).
                                                                12
43692 - -II
      2



        We affirm.


        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. 0405 it is so ordered.




         Worswick, C. J.




                                               13
