State Of Washington, V. Dwayne Antwon Johnson, Jr.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, No. 82553-4-I

Respondent, DIVISION ONE

v.

UNPUBLISHED OPINION

DWAYNE ANTWON JOHNSON JR.,

Appellant.

SMITH, C.J. — Dwayne Johnson appeals a jury verdict finding him guilty of

second degree assault and of eight counts of violating a no-contact order. He

contends that (1) the court erred in finding his two prior misdemeanor convictions

could be used to elevate later violations to felonies, (2) the admission of Darryce

Caldwell’s prior written statement violated ER 801, (3) Caldwell’s testimony as to

a prior assault violated ER 404(b), (4) the admission of recorded jail phone calls

violated ER 403, (5) the court erred in denying his motion to sever, and (6) the

admission of recorded jail phone calls violated his equal protection rights.

Because we do not find his arguments persuasive, we affirm.

FACTS

Relationship and Prior Incidents

Dwayne Johnson and Darryce Caldwell dated for approximately two years

and lived together for the entirety of their relationship. According to Caldwell, the

two had their disagreements, but generally got along well. However, in August

No. 82553-4-I/2

2018, a bystander witnessed Johnson punch Caldwell and knock her to the

ground and then punch her a second time while on the ground. When the

bystander confronted Johnson, telling him to “knock it off,” Johnson allegedly

pulled a handgun out of his pocket, chambered a round, and threatened to shoot

the bystander. Johnson was charged with and convicted of assault. The court

entered a no-contact order (NCO) in September 2018.

Johnson and Caldwell continued their relationship despite the NCO.

About nine months after the assault, but before the matter proceeded to trial,

Johnson violated the NCO. Shortly after midnight on June 12, 2019, Caldwell

called the police and relayed that she and Johnson had an in-person argument at

her apartment. When the argument escalated, Caldwell decided to leave for her

mother’s house. Johnson followed Caldwell in his vehicle. While driving,

Caldwell called her mother. Police corroborated the events with Caldwell’s

mother, who reported her daughter called her at about 11:20 p.m., frantically

saying, “Dwayne is chasing me,” and exclaiming, “He is shooting at me!”

Caldwell also told police that later that evening, between 12:26 a.m. and 12:36

a.m., Johnson called her multiple times. Caldwell reported she recognized the

voice on the other end of the call as Johnson and showed officers several missed

calls from Johnson’s cell phone number. Police were unable to locate any bullet

holes or other evidence of the shooting and Johnson was charged with two

counts of violating the NCO. He was convicted of both counts on August 13,

2019.

2

No. 82553-4-I/3

Present Incident

On June 16, 2019, less than a week after Johnson was charged with

violating the NCO, a resident at the parties’ apartment complex overheard yelling

from the building parking lot. The resident looked out her kitchen window and

saw Johnson and Caldwell shouting at each other next to a car. Johnson

appeared angry and was grabbing “wildly” at Caldwell, who was backing away in

an apparent attempt to protect herself. The couple got into the car and the

resident watched the ensuing struggle. She saw Caldwell’s feet “flailing” at the

side of the car as she tried to pull herself out and Johnson wrap his arms around

her neck to pull her back into the car. The resident testified that she watched

Caldwell get out of the car and begin walking away. However, she recalled that

both Caldwell and Johnson eventually got back in the vehicle and sped away.

Two other bystanders corroborated the resident’s story and also observed

Johnson hit Caldwell.

Caldwell testified that she had been trying to sell her dog, but when

Johnson found out she had been considering this, he got angry. The couple

started arguing inside Caldwell’s car. When the argument became heated,

Caldwell tried to get out of the car, but Johnson grabbed her, placing her in a

headlock.1 Caldwell finally managed to kick the door open and escape, but

Johnson followed. He came up behind her and punched her around the head,

1 In her affidavit to Officer Ryan Greely at the hospital, Caldwell said that

Johnson had her in a “headlock” and she could not breathe. However, at trial,

Caldwell recanted, asserting that she disagreed with the officer’s characterization

of the event and that Johnson had instead grabbed her by the arm.

3

No. 82553-4-I/4

striking her in the face. She awoke on the ground with a headache. She

described blurry, double vision and excruciating pain.

Police eventually located the couple at a cannabis retailer. Johnson fled

on foot and was eventually apprehended by officers. While speaking to police,

Caldwell was spitting blood, her nose was bleeding, and she had a difficult time

opening her eyes or standing on her own. Caldwell told the officers that she had

been hit and strangled.

An ambulance transported Caldwell to the hospital where Officer Ryan

Greely of the Everett Police Department took her written statement under penalty

of perjury. After Officer Greely completed his interview, the attending emergency

room physician, Dr. Nicole von Suhr, examined Caldwell. Dr. von Suhr

diagnosed Caldwell with an orbital rim fracture (a fracture of the bone

surrounding the eye), a nasal fracture, soft tissue damage, and a hemorrhage

into one of her sinuses. Because the orbital rim was shattered, Dr. von Suhr

determined Caldwell needed surgery, and referred her to an ear, nose, and

throat surgeon. Dr. von Suhr testified at trial that the injury was consistent with a

single hard hit from a fist-sized object.

In her statement taken by Officer Greely, Caldwell stated that she “got in

the car to prevent [Johnson] hitting [her] again.” But at trial, she recanted that

portion of her statement and testified that she entered the car willingly. She did

not, however, change her testimony that once inside the car, Johnson told her:

“You do this to me . . . this is why I put my hands on you.”

4

No. 82553-4-I/5

Johnson was charged with kidnapping, second degree assault, and eight

counts of violating a NCO. Most of the NCO violations arose while Johnson was

incarcerated but continued to call Caldwell via the jail phone system. All of the

calls were recorded. Of the approximately 700 calls made by Johnson to

Caldwell, she answered 400, and 30 were admitted at trial.

At trial, Johnson conceded that he had assaulted Caldwell, but disputed

the severity. He also contested the kidnapping charge. He conceded that the

State had a “strong case” regarding the NCO violations. The jury acquitted

Johnson of kidnapping, but convicted him of second degree assault and all eight

NCO violations. Johnson appeals.

ANALYSIS

On appeal, Johnson assigns error to a variety of issues, including double

jeopardy and statutory interpretation issues, evidentiary rulings, and equal

protection violations. We address each in turn.

Predicate Convictions and Double Jeopardy

Johnson argues that the trial court erred in finding that his two prior

misdemeanor convictions for violating an NCO could be used to elevate the NCO

violations in this case to felonies. See Former RCW 26.50.110(5) (2019)2

(elevating NCO violations to felonies where defendant has two previous

misdemeanor NCO convictions). He claims that the term “previous convictions”

as used in former RCW 26.50.110 is ambiguous and urges this court to interpret

2 This chapter has since been repealed, but the parties cite to this RCW as

Johnson was charged under it at the time.

5

No. 82553-4-I/6

this language to exclude prior convictions that arise from the same incident. He

also contends that the two prior misdemeanor convictions violate double

jeopardy because they arose from a single incident. Therefore, he maintains,

they should not have been counted as the “two previous convictions” necessary

to elevate his subsequent violations to a felony.

The State disagrees, arguing that the legislature did not intend such a

reading of former RCW 26.50.110, that there is no double jeopardy violation, and

asserting as a threshold matter that Johnson waived these issues by not raising

them below. We conclude that Johnson did not waive the issues below, the

statute is not ambiguous, there is no double jeopardy violation, and that Johnson

had the requisite two previous convictions for elevating his later NCO violations.

1. Waiver

In general, the failure to raise an issue before the trial court waives the

issue on appeal under RAP 2.5(a). State v. Glover, 4 Wn. App. 2d 690, 693, 423

P.3d 290 (2018).

Here, Johnson raised both his statutory interpretation and double jeopardy

arguments below. Before trial, Johnson moved to dismiss counts 4-10 for

violations of the NCO as a double jeopardy violation. Johnson also moved to

dismiss counts 5-10 for felony violations of the NCO, arguing that former

RCW 26.50.110 was ambiguous and the language “two previous convictions”

should be interpreted as meaning “convictions for two separate instances.”

Johnson raised both issues again at trial. The State concedes that Johnson

raised an interpretation issue below, but asserts that he cannot raise a different

6

No. 82553-4-I/7

interpretation argument about the same statute on appeal. This is unpersuasive.

Johnson’s statutory interpretation argument before the trial court and before this

court concern the same core issue: whether the language “two prior convictions”

could be used to elevate his later charges. Therefore, he did not waive this

argument.

2. Statutory Interpretation

Statutory interpretation is a question of law, which we review de novo.

State v. Haggard, 195 Wn.2d 544, 547, 461 P.3d 1159 (2020). The court’s duty

is to ascertain and carry out the legislature’s intent. State Dept. of Ecology v.

Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). “If the meaning of

the statute is plain on its face, we ‘give effect to that plain meaning as an

expression of legislative intent.’ ” Haggard, 195 Wn.2d at 548 (quoting Campbell

& Gwinn, 146 Wn.2d at 9-10. To determine the plain meaning of a statute, courts

look to the text of the statute, as well as the context of the statute, related

provisions, and the statutory scheme as a whole. Campbell & Gwinn, 146 Wn.2d

at 10. Undefined terms are given their plain and ordinary meaning unless a

contrary legislative intent is indicated. Haggard, 195 Wn.2d at 548. A term is

ambiguous if it is susceptible to more than one reasonable interpretation.

Haggard, 195 Wn.2d at 548. If the court determines an undefined term is

ambiguous, then it “may resort to statutory construction, legislative history, and

relevant case law for assistance in discerning legislative intent.” Christensen v.

Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 (2007).

7

No. 82553-4-I/8

Under former RCW 26.50.110(5), a misdemeanor NCO violation is

elevated to “a class C felony if the offender has at least two previous convictions

for violating the provisions of an order issued under [the] chapter.” The previous

convictions “may involve the same victim or other victims specifically protected

by the orders the offender violated.” Former RCW 26.50.110(5). This court

previously interpreted “two previous convictions” under the statute to occur “when

there are two prior pleas of guilty, two prior jury verdicts of guilt, or one prior plea

and one prior jury verdict of guilt to the charges specified in the statute.” State v.

Rice, 116 Wn. App. 96, 101, 64 P.3d 651 (2003). Here, there are two prior jury

verdicts finding Johnson guilty of violating a NCO.

Still, Johnson argues that Rice is inapplicable and that the phrase “two

prior convictions” is ambiguous. And because of this ambiguity, he asserts that

there was insufficient evidence to support his conviction for a felony based on the

two prior NCO convictions. He instead urges this court to look to

RCW 9.96.060(2)(f)(ii) to interpret the phrase “previous conviction.” He claims

that RCW 9.96.060’s definition of “previous conviction” is more applicable

because it clarifies that a domestic violence conviction arising out of a single

incident does not qualify as a previous conviction. In response to Johnson’s

sufficiency argument, the State asserts that Johnson’s claim is barred as invited

error because Johnson stipulated that the two prior NCO counts constituted two

separate convictions.

8

No. 82553-4-I/9

But “two prior convictions” is not ambiguous and therefore, Rice is

dispositive of this issue. We decline to reach Johnson’s sufficiency argument or

the State’s invited error claim.

3. Double Jeopardy

The double jeopardy clauses of the United States and Washington

Constitutions protect against multiple punishments for the same offense. State v.

Muhammad, 194 Wn.2d 577, 615-16, 451 P.3d 1060 (2019). To determine

whether double jeopardy principles are violated when a defendant is convicted of

multiple violations of the same statute, the court looks to what “unit of

prosecution” the legislature intended to be the punishable act under the statute.

State v. Tvedt, 153 Wn.2d 705, 710, 107 P.3d 728 (2015). The “unit of

prosecution” may be an act or course of conduct. Tvedt, 153 Wn.2d at 710.

“Multiple convictions are proper only where the facts of the case support multiple

units of prosecution committed.” State v. Westling, 145 Wn.2d 607, 612, 40 P.3d

669 (2002). This court previously determined that the unit of prosecution for a

NCO violation under RCW 26.50.110 is “each single violation of a no-contact

order.” State v. Brown, 159 Wn. App. 1, 10-11, 248 P.3d 518 (2010). We review

the interpretation and application of the double jeopardy clause de novo. State v.

Knight, 162 Wn.2d 806, 810, 174 P.3d 1167 (2008).

Here, the record does not permit consideration of Johnson’s argument that

the prior convictions were a continuing course of conduct. Though Johnson

urges us to analyze “the nature of the evidence the State relied on to obtain [the

prior] separate convictions,” those convictions are not on appeal. Rather, they

9

No. 82553-4-I/10

stem from a separate Everett Municipal Court proceeding. He cannot now

collaterally attack them via this appeal. Therefore, Johnson’s later NCO

violations were appropriately elevated and the State did not violate double

jeopardy principles.

ER 801

Johnson next argues that the court erred in admitting Caldwell’s prior

written statement, taken by Officer Greely while she was being treated at the

hospital, as substantive evidence under ER 801. We conclude that the court did

not err in admitting the statement, which was sufficiently reliable.

1. Admission of Caldwell’s Statement

Hearsay statements are not typically admissible. ER 802. Under

ER 801(d)(1)(i), however, a prior inconsistent statement is not hearsay if it is

“given under oath subject to penalty of perjury at a trial, hearing, or other

proceeding, or in a deposition.” “Because such a statement is not hearsay, it is

admissible at trial as substantive evidence.” State v. Otton, 185 Wn.2d 673, 679,

374 P.3d 1108 (2016).

The Washington Supreme Court has declined to categorically rule whether

a police interview is either always or never considered an “other proceeding.”

State v. Smith, 97 Wn.2d 856, 860-61, 651 P.2d 207 (1982). Rather, to

determine whether the interview was an “other proceeding,” courts analyze the

facts of the case and the purposes of the hearsay rule. State v. Nieto, 119 Wn.

App. 157, 162, 79 P.3d 473 (2003).

10

No. 82553-4-I/11

In making this determination, the court considers the reliability of a prior

inconsistent statement using the following factors: “ ‘(1) whether the witness

voluntarily made the statement, (2) whether there were minimal guarantees of

truthfulness, (3) whether the statement was taken as standard procedure in one

of the four legally permissible methods for determining the existence of probable

cause, and (4) whether the witness was subject to cross examination when

giving the subsequent inconsistent statement.’ ” State v. Phillips, 6 Wn. App. 2d

651, 672, 431 P.3d 1056 (2018) (quoting State v. Thach, 126 Wn. App. 297, 308,

106 P.3d 782 (2005). Reliability is the key to this analysis. Smith, 97 Wn.2d at

861. A decision to admit or exclude evidence is reviewed for an abuse of

discretion. State v. Griffin, 173 Wn.2d 467, 473, 268 P.3d 924 (2012). “A trial

court abuses its discretion if its decision is manifestly unreasonable or based on

untenable grounds or untenable reasons.” In re Marriage of Littlefield, 133

Wn.2d 39, 46-47, 940 P.2d 1362 (1997).

Here, given the facts of the case, the trial court did not abuse its discretion

in admitting Caldwell’s statement from the police interview. Johnson does not

argue or offer any evidence that the statement Caldwell made to police, or her

signature on the affidavit, was not voluntary. It is undisputed the police obtaining

Caldwell’s signed statement is one of the four legally permissible methods for

determining the existence of probable cause under factor three. See Phillips, 6

Wn. App. 2d at 673 (“It is well settled that the police obtaining [a] signed victim

statement is one of the four legally permissible methods for determining the

existence of probable cause under factor three.”). And neither party disputes that

11

No. 82553-4-I/12

Caldwell testified at trial subject to cross-examination about her prior written

statement. The only issue is whether there was sufficient evidence to

demonstrate there were minimal guarantees of truthfulness under factor two.

Phillips considered this issue in a similar factual context. There, a victim

of domestic violence signed a sworn statement describing an assault and later

recanted at trial, testifying that she did not remember the officer reading her the

statement, that she did not know if it was signed under penalty of perjury, and

that the statement was not in her own words. Phillips, 6 Wn. App. 2d at 670,

674. This court found that minimal guarantees of truthfulness were present

because the declarant had signed her statement under the “penalty of perjury”

language and because the officer testified to reading the statement back to her,

including the “penalty of perjury” language. Phillips, 6 Wn. App. 2d at 673-74.

Here, Caldwell did not dispute at trial that she signed the statement

voluntarily or that she gave a statement to the officer. Rather, Johnson argues

that Caldwell was not in a proper mental state to give a statement because she

was medicated at the time. But this assertion conflicts with testimony of the

officer who took the statement, Officer Greely, and of the treating emergency

room physician, Dr. von Suhr. Dr. von Suhr testified at trial that Caldwell had not

been given medication before her initial medical evaluation, which was after her

interview with Officer Greely. Both Officer Greely and Dr. von Suhr testified that

Caldwell was coherent and able to answer questions. And Officer Greely also

testified that he followed standard procedure for taking victim statements,

12

No. 82553-4-I/13

including reading the statement back to Caldwell line by line and informing her

that she would be signing it under penalty of perjury.

Moreover, the court decided to admit all three of Caldwell’s prior

statements, two of which supported Johnson’s theory of the case. The court

noted that in “[b]orderline situations”—where the witness’s prior statement is

quite detailed, but at trial the witness claims to have forgotten those details—the

court has “considerable discretion to do what seems fair and reasonable.”

Therefore, the court explained that it would not “highlight[] one statement

[Exhibit 34] . . . to the exclusion of others,” and that it felt the jury “would probably

like to see all the statements.”

Accordingly, we conclude that the trial court did not err in admitting the

statement under ER 801(d)(1)(i) because trial court did not abuse its discretion in

finding there were minimal guarantees of truthfulness under factor two. 3 We

note, too, that in cases such as this, “the inconsistent statement is more likely to

be true than the testimony at trial as it was made nearer in time to the matter to

which it relates and is less likely to be influenced by factors such as fear or

forgetfulness.” Smith, 97 Wn.2d at 861.

3 And, relevant here, Johnson’s argument regarding reliability of Caldwell’s

statement implicates her credibility as a witness, a matter to be resolved by the

jury that heard her testimony. Credibility determinations are not within the

purview of this court. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)

(“Credibility determinations are for the trier of fact and cannot be reviewed on

appeal.”) abrogated on other grounds by State v. Crossguns, 199 Wn.2d 282,

505 P.3d 529 (2022).

13

No. 82553-4-I/14

ER 404(b)

Johnson next asserts that the trial court erred in allowing Caldwell to

testify that Johnson assaulted her in 2018 in violation of ER 404(b). We

conclude that the trial court did not abuse its discretion in admitting the

testimony.

We review the trial court’s determination to admit or exclude evidence for

an abuse of discretion. State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786

(2007). The appellant bears the burden of proving the court abused its

discretion. State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999).

ER 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such

as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.

The rule prohibits certain types of evidence from being used to prove

character of a person or to show action in conformity with that character, but

allows that same evidence to be introduced for any other purpose, provided that

it is relevant and its probative value outweighs the danger of unfair prejudice.

State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012). A court’s decision

to admit evidence of prior bad acts depends heavily on the facts of the case and

the purpose for which the evidence is sought to be introduced. State v. Ashley,

186 Wn.2d 32, 44, 375 P.3d 673 (2016).

In recent years, Washington courts have been persuaded to admit

evidence of prior acts of domestic violence on theories tied to the characteristics

14

No. 82553-4-I/15

of domestic violence itself, such as proving the alleged victim’s state of mind

when it is an element of the charged offense. Ashley, 186 Wn.2d at 44; see,

e.g., State v. Fisher, 165 Wn.2d 727, 744-45, 202 P.3d 937 (2009) (allowing

evidence of past physical abuse to demonstrate the victim’s fear of the defendant

and explain the apparent inconsistency of the victim not reporting the full extent

of the abuse earlier). The courts have allowed evidence of prior acts of domestic

violence to support a witness’s credibility after their testimony changed on the

grounds that the jury was entitled to evaluate the witness’s credibility with full

knowledge of the dynamics of a relationship marked by domestic violence and

the effects such a relationship has on the victim. State v. Magers, 164 Wn.2d

174, 186, 189 P.3d 126 (2008) (“We . . . conclude that prior acts of domestic

violence, involving the defendant and the crime victim, are admissible in order to

assist the jury in judging the credibility of a recanting victim.”); see also State v.

Harris, 20 Wn. App. 2d 153, 157-58, 498 P.3d 1002 (2021) (trial court properly

allowed evidence of prior assault to help jury in judging victim’s credibility where

victim recanted at trial); State v. Woods, 198 Wn. App. 453, 459-60, 393 P.3d

886 (2017) (evidence that defendant previously forced victim into prostitution

against her will relevant in assault trial to explain nature of victim’s relationship to

defendant and her delay in reporting assault to police).

But evidence of prior acts is not admissible “where there is no evidence of

injuries to the alleged victim and the witness neither recants nor contradicts prior

statements.” State v. Gunderson, 181 Wn.2d 916, 925, 337 P.3d 1090 (2014);

see also Ashley, 186 Wn.2d at 47 (trial court improperly admitted evidence of

15

No. 82553-4-I/16

prior assault where victim’s testimony at trial was consistent with prior statements

to police).

Here, case law squarely supports admitting Caldwell’s testimony on the

basis of providing the jury with full knowledge of the dynamics of her and

Johnson’s relationship. Caldwell’s state of mind was an element of the

kidnapping charge, for which the State was required to prove that Johnson

restricted Caldwell’s movements without consent. Evidence of the prior assault

highlights the effects of the relationship on Caldwell and gives context to her

actions in this case, such as why she agreed to get in the car with Johnson after

he assaulted her. It also explains her inconsistent testimony at trial and why it

differed from her sworn statement to Officer Greely. For example, Caldwell

testified at trial that she did not recall talking to Officer Greely. But just minutes

later, she recounted that she felt “out of it” and is able to describe her physical

symptoms before being admitted at the hospital. And in her statement to Officer

Greely at the hospital, Caldwell told the officer that, once inside the car, Johnson

“pulled [her] hair to get [her] closer to him, then put [her] in a headlock.” She told

the officer that she “could not breathe at all” and “thought [she] was going to die.”

She also stated that she “got in the car to prevent [Johnson] hitting [her] again.”

But at trial, her story changed. Rather than being held in a headlock, she

testified that Johnson grabbed her arm. She also stated that she had no trouble

breathing at any time during the altercation. And in her later annotated version of

her original police statement, Caldwell indicated that her prior statement, “I

thought I was going to die,” was not true. When asked at trial why she got back

16

No. 82553-4-I/17

into the car with Johnson, Caldwell stated that she “wanted” to get in the car, that

her keys were in the car and she didn’t want to be “stuck outside.” And in her

first statement to Officer Greely, Caldwell stated that she “want[ed] to assist in

prosecution.” But in her amended statement, she wrote in all capital letters that

she did not want to assist in Johnson’s prosecution. It was not error for the court

to admit both of Caldwell’s statements—the sworn statement at the hospital and

the later annotated and amended statement—in order to assist the jury in

assessing the credibility of Caldwell testimony.

Johnson urges this court to “narrowly limit” the “flawed procedure” in

domestic violence cases that “allows the use of propensity evidence, purportedly

to protect women from themselves, but which ultimately entrenches ages-old

notions that women lie and cannot be trusted.” While we acknowledge that

sexist notions surrounding domestic violence exist, statistics reveal that both men

and women experience domestic violence at staggering rates; 47 percent of

women and 44 percent of men experience contact sexual violence,4 physical

violence, and/or stalking by an intimate partner in their lifetime.5 In adopting this

exception to ER 404(b), our Supreme Court did not differentiate between male

and female victims. Magers, 164 Wn.2d at 186 (“[P]rior acts of domestic

4 “Contact sexual violence” includes rape, sexual coercion, and unwanted

sexual contact.

5 These figures are from The National Intimate Partner and Sexual

Violence Survey’s 2016/2017 Report on Intimate Partner Violence. For more

information, see Centers for Disease Control and Prevention, The National

Intimate Partner and Sexual Violence Survey: 2016/2017 Report on Intimate

Partner Violence 3 (2022), https://www.cdc.gov/violenceprevention/pdf/nisvs/

NISVSReportonIPV_2022.pdf [https://perma.cc/D4YH-GAYS].

17

No. 82553-4-I/18

violence, involving the defendant and the crime victim, are admissible in order to

assist the jury in judging the credibility of a recanting victim.”) (Emphases added).

Moreover, the exception is already quite limited. Ashley, 186 Wn.2d at 43 (“ ‘To

guard against this heightened prejudicial effect, we confine the admissibility of

prior acts of domestic violence to cases where the State has established their

overriding probative value.’ ”) (quoting Gunderson, 181 Wn.2d at 925). As the

Court explained in Ashley, it has rejected a blanket domestic violence exception

for prior bad acts, noting that “ ‘the mere fact that a witness has been the victim

of domestic violence does not relieve the State of the burden of establishing why

or how the witness’s testimony is unreliable.’ ” 186 Wn.2d at 46 (quoting

Gunderson, 181 Wn.2d at 924-25). And evidence of prior bad acts in this context

is not automatically admissible even when a witness gives contradictory

testimony. Ashley, 186 Wn.2d at 46 (“ ‘That other evidence from a different

source contradicted the witness's testimony does not, by itself, make the history

of domestic violence especially probative of the witness's credibility.’ ”) (quoting

Gunderson, 181 Wn.2d at 924). We conclude that the trial court did not abuse its

discretion in allowing Caldwell to testify to the 2018 assault.

ER 403 and Jail Phone Calls

Johnson next argues that the court erred in admitting 30 jail phone calls to

prove the eight NCO violations because the calls were cumulative and unduly

prejudicial in violation of ER 403. Instead, Johnson maintains that the State

should have admitted only eight calls as evidence of the eight NCO violations.

He further asserts that the calls were used to show he was abusive towards

18

No. 82553-4-I/19

Caldwell and that this was propensity evidence to the kidnapping and assault

charges. We conclude that the trial court did not err.

ER 403 authorizes a court to exclude relevant evidence “if its probative

value is substantially outweighed by the danger of unfair prejudice.” Unfair

prejudice is caused by evidence that tends to arouse an emotional, irrational, or

confused response from the trier of fact. State v. Rice, 48 Wn. App. 7, 13, 737

P.2d 726 (1987). The trial court has broad discretion in making this

determination and its ruling is reviewed for an abuse of discretion. State v. Bell,

60 Wn. App. 561, 565, 805 P.2d 815 (1991).

Johnson argued at trial that the calls were unduly prejudicial and

cumulative. The trial court judge disagreed. The court noted that Johnson’s

threats to assault Caldwell made in the calls were “relevant to an argument of

possible consciousness of guilt.” The court reasoned that because the State only

sought to admit 30 of the 700 dialed calls—400 of which connected—between

Johnson and numbers associated with Caldwell, the number of calls was neither

unduly cumulative or excessive. In admitting the calls, the court agreed to issue

a limiting instruction allowing the jury to only hear the calls once and to not

consider their content.

Though Johnson argues that the State should have only been able to

present eight calls to support the eight NCO violations, the State may submit

evidence of multiple acts, any one of which could support the counts charged, as

long as the State either elects one incident to rely on for a conviction or a

19

No. 82553-4-I/20

Petrich6 instruction is given. State v. Jones, 71 Wn. App. 798, 821, 863 P.2d 85

(1993). Here, the court issued a Petrich instruction, telling the jury that they

needed to unanimously agree on one act for each NCO violation. Thus, we

conclude the trial court did not abuse its discretion.

Motion to Sever

Johnson next argues that the trial court erred by denying his motion to

sever the assault and kidnapping charges from the NCO charges in violation of

CrR 4.4(b). Johnson raised his motion before trial and renewed it during trial.

We conclude that the trial court did not abuse its discretion in making this ruling.

“Joinder” refers to bringing multiple criminal charges against one person

as separate counts in a single charging document. CrR 4.3(a). The court may

later “join” these offenses on a party’s motion if they “[a]re of the same or similar

character, even if not part of a single scheme or plan” or “[a]re based on the

same conduct or on a series of acts connected together or constituting parts of a

single scheme or plan.” CrR 4.3(a)(1), (2). Offenses must be consolidated for

trial when they can be properly joined. State v. Bryant, 89 Wn. App. 857, 864,

950 P.2d 1004 (1998).

On the other hand, severance refers to dividing joined offenses into

separate charging documents. CrR 4.4(b). Severance may be ordered on a

6 State v. Petrich, 101 Wn.2d 566, 570, 572, 683 P.2d 173 (1984). When

the State presents evidence of several distinct criminal acts but charges the

defendant with only a single crime, jury unanimity must be protected. In re Pers.

Restraint of Mulamba, 199 Wn.2d 448, 507, 508 P.3d 645 (2022). The State

must either elect a single act on which it will rely or instruct that the jurors agree

the same underlying criminal act has been proved beyond a reasonable doubt.

Mulamba, 199 Wn.2d at 507. Such an instruction is called a Petrich instruction.

20

No. 82553-4-I/21

party’s motion where “the court determines that severance will promote a fair

determination of the defendant’s guilt or innocence of each offense.” CrR 4.4(b).

A defendant seeking severance has the burden of demonstrating that trial

involving all counts would be so manifestly prejudicial as to outweigh the concern

for judicial economy. A trial court has broad discretion to sever charges and try

them separately when it is appropriate “to promote a fair determination of the

guilt or innocence of a defendant.” CrR 4.4(c)(2)(i). The court considers four

factors in determining whether to sever charges: (1) the strength of the state’s

evidence on each count; (2) clarity of defenses to each count; (3) court

instructions to the jury to consider each count separately; and (4) the

admissibility of evidence of other crimes even if not joined for trial. State v.

Bluford, 188 Wn.2d 298, 311-12, 393 P.3d 1219 (2017). Separate trials are

disfavored in Washington and we review a trial court’s denial of a motion to sever

for abuse of discretion. State v. Emery, 174 Wn.2d 741, 752, 278 P.3d 653

(2012).

Here, each of the four factors is either neutral or weighs in favor of

denying Johnson’s motion to sever. In both his first and renewed motion to

sever, Johnson gives little attention to the first factor; he does not indicate in

either motion whether there were significant variations as to the strength of the

State’s evidence for each charge. He merely urges the court to “consider” the

strength of the State’s evidence on each count. In any event, the State had

ample evidence as to each individual count; it does not appear, and Johnson

does not argue, that the evidence for one count could have a bolstering effect on

21

No. 82553-4-I/22

a weaker count. Johnson does not provide any persuasive reason why we

should determine that this first factor weighs in favor of severance.

As to the second factor, Johnson conceded that it was not “the strongest

point” in favor of his argument to sever because he had a “general denial

defense.” A general defense is unlikely to be confusing to the jury and the

second factor, clarity of defenses, does not weigh in favor of severing.

For the third factor, Johnson argues that even with an instruction to

consider each count separately the jury would not be able to keep the evidence

conceptually separate. But Johnson also agreed that such an instruction would

be proper. And the court gave this instruction at trial. Absent indication

otherwise, we presume that jury instructions are followed. State v. Dent, 123

Wn.2d 467, 486, 869 P.2d 391 (1994). The third factor weighs against

severance because the jury was properly instructed and Johnson does not

indicate that the jury failed to follow instructions.

Johnson focuses primarily on the fourth factor, cross admissibility of the

evidence pursuant to ER 404(b), and argues that the evidence for each charge

was not cross admissible. As detailed above, ER 404(b) provides that evidence

of other crimes, wrongs, or acts may be admissible for purposes other than

proving character or that someone acted in a like fashion. The list of “other

purposes” mentioned in ER 404(b) is merely illustrative. Gresham, 173 Wn.2d

at 420. Admission of evidence under ER 404(b) requires the trial court to identify

the purpose for which the evidence is sought to be introduced, determine

whether it is relevant to prove an element of the crime charged, and weigh the

22

No. 82553-4-I/23

probative value of the evidence against its prejudicial effect. State v. Lough, 125

Wn.2d 847, 853, 889 P.2d 487 (1995). This court reviews decisions to admit

evidence under ER 404(b) for abuse of discretion. Foxhoven, 161 Wn.2d at 174.

Here, the court found that the jail phone calls were cross admissible as

evidence of a “consciousness of guilt” as to the kidnapping and assault charges.

The court reasoned that the calls “provide[d] framework” for the jury so that it did

not have to view the case in a “vacuum.” The State argued that the phone calls

were necessary for the jury to determine the credibility of Caldwell and better

understand why she might change her testimony at trial. The State noted that in

the calls underlying the NCO violation counts, Johnson made references to how

Caldwell needed to change her statement about the kidnapping. Evidence of

prior acts, particularly in a situation involving domestic violence, is admissible

under ER 404(b) for purposes of evaluating a witness’s credibility after their

testimony changes because such evidence is indicative of the dynamics of a

relationship marked by domestic violence and its effects on the victim. Magers,

164 Wn.2d at 186. The calls gave the jury better context for understanding the

dynamic between Johnson and Caldwell. They shed light on why Caldwell chose

to reenter the car with Johnson and they explain why her testimony at trial

differed from her sworn statement. The trial court did not abuse its discretion in

ruling that the phone calls were admissible pursuant to ER 404(b).

Because each of the four elements either supports joinder or is neutral,

the trial court did not err when it denied Johnson’s motion to sever.

23

No. 82553-4-I/24

Privileges and Immunities and Equal Protection

Finally, Johnson argues that the trial court’s admission of his recorded jail

phone calls violated the privileges and immunities clause of article I, section 12 of

the Washington Constitution and the equal protection clause of both article I,

section 12 and the Fourteenth Amendment to the United States Constitution. He

asserts that by admitting the recorded calls, the trial court treated him differently

than a wealthier defendant, who could afford to pay bail and whose calls would

not be recorded and admitted at trial. We conclude that the admission of

Johnson’s phone calls did not violate the United States or Washington

Constitution.

1. Privileges and Immunities

Johnson asserts that the admission of the recorded jail phone calls

violated the state constitution’s privileges and immunities clause because such

admission “grants a special privilege to non-indigent defendants, whose personal

conversations are not monitored by the government (absent a warrant) and not

introduced against them at trial.” Because the trial court’s decision to admit the

recording does not grant either a privilege nor an immunity, we conclude there

was no privileges and immunities violation.

The privileges and immunities clause of the Washington Constitution

states that “[n]o law shall be passed granting to any citizen, class of citizens, or

corporation other than municipal, privileges or immunities which upon the same

terms shall not equally belong to all citizens, or corporations”. W ASH. CONST.

Art. I, § 12. For a violation of article I, section 12 to occur, the law or its

24

No. 82553-4-I/25

application must confer a privilege to a class of citizens. Grant County Fire Prot.

Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 812, 83 P.3d 419 (2004). The

purpose of article 1, section 12 is to “prevent favoritism and special treatment for

a few, to the disadvantage of others.” Ockletree v. Franciscan Health Sys., 179

Wn.2d 769, 776, 317 P.3d 1009 (2014). Courts apply a two-step analysis to

determine whether a law implicates a “privilege or immunity.” Martinez-Cuevas

v. DeRuyter Bros. Dairy, Inc., 196 Wn.2d 506, 518-19, 475 P.3d 164 (2020).

First, the court determines whether the law grants a privilege or immunity

implicating fundamental rights of state citizenship. Martinez-Cuevas, 196 Wn.2d

at 519. Next, if the law does implicate a privilege or immunity, the court asks

whether there is nonetheless a “ ‘reasonable ground’ ” for granting that privilege

or immunity. Martinez-Cuevas, 196 Wn.2d at 519 (quoting Schroeder v.

Weighall, 179 Wn.2d 566, 573, 316 P.3d 482 (2014). The article 1, section 12

reasonable ground test is more exacting than rational basis review. Martinez-

Cuevas, 196 Wn.2d at 523. Under the test, a court will not hypothesize facts to

justify a legislative decision. Schroeder, 179 Wn.2d at 574. Rather, a court will

analyze the decision to determine whether it in fact serves the legislature’s stated

goal. Schroeder, 179 Wn.2d at 574. Speculation will not suffice. Schroeder,

179 Wn.2d at 575.

Here, the jail’s practice of recording phone calls does not violate the

privileges and immunities clause because the admission of a legally recorded

telephone call is not a law, nor does it grant any privilege or immunity to any

person or class of persons. The admission of the phone recording in this case

25

No. 82553-4-I/26

has no impact on any other defendants. Accordingly, Johnson’s claim to the

contrary fails.

2. Equal Protection

Johnson argues that the admission of the recording violates the equal

protection clauses of both article I, section 12 and the Fourteenth Amendment.

He asserts that admitting recorded jail calls of indigent defendants burdens the

fundamental right to a fair trial. He also contends that indigent defendants who

are incarcerated pretrial are a semi-suspect class. Specifically, he argues that

the trial court violated his right to equal protection under the law by admitting the

recorded jail calls when “such recordings may not be introduced against

defendants with money.” Because recorded jail calls may be introduced against

any defendant, regardless of wealth, we conclude that Johnson fails to establish

a violation of his equal protection rights.

The equal protection clauses of the Fourteenth Amendment and article I,

section 12 require that people similarly situated under the law receive similar

treatment from the state. State v. Haq, 166 Wn. App. 221, 253, 268 P.3d 997

(2012). To show an equal protection violation, a defendant must establish that

they received disparate treatment because of membership in a class of similarly

situated individuals and that the disparate treatment was the result of intentional

or purposeful discrimination. State v. Osman, 157 Wn.2d 474, 484, 139 P.3d

334 (2006). Therefore, Johnson must establish that he was treated differently

than others who were similarly situated. Osman, 157 Wn.2d at 485.

26

No. 82553-4-I/27

Here, Johnson does not set forth adequate facts establishing that he was

treated differently from others who are similarly situated. He claims that non-

indigent defendants can “never” have their personal calls introduced against

them because they can always bail out of jail. But Johnson neglects to

acknowledge that some indigent defendants are released pretrial and that some

non-indigent defendants are not.7 Nevertheless, he still contends that he was not

able to pay bail when a wealthier individual in his position could have, and

thereby could have avoided having his telephone conversations recorded and

introduced at trial. However, Johnson was warned that the call was subject to

recording.

Even if we accept Johnson’s argument that he remained in custody

because he is indigent, defendants who are similarly situated for the purposes of

equal protection analysis are those who, like Johnson, have made incriminating

statements on legally recorded jail phone calls. Johnson sets forth no reason to

believe that any defendant under these circumstances would not be subject to

admission of those recordings at trial.8

7 The fact that socioeconomic, racial, and ethnic disproportionality exists

as a result of systemic racial injustices throughout our criminal justice system is

indisputable. We recognize and acknowledge that low-income individuals,

persons of color, and other marginalized populations often bear the lion’s share

of police intervention and criminal prosecution and that this contributes to the

disproportionate representation of these communities in our jails and state prison

system.

8 It is not lost on us that the practical effect of the inability of indigent

defendants to bail out of jail subjects them to greater surveillance than non-

indigent defendants who can afford to make bail. However, that alone is not

sufficient to establish that the admission of the calls violated Johnson’s equal

protection rights.

27

No. 82553-4-I/28

We affirm.

WE CONCUR:

28