State Of Washington v. Kali A. Etpison ( 2019 )

IN THE COU RT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 80103-1
Respondent,
DIVISION ONE
V.
UNPUBLISHED OPINION
KALI ADELBAI ETPISON,
Appellant. FILED: September 16, 2019
CHUN, J. —A jury convicted Kali Adelbai Etpison of fourth degree assault,
malicious mischief, obstructing a law enforcement officer, intimidating a witness,
and harassment. On appeal, Etpison claims that (1) he received ineffective
assistance of counsel in connection with propensity evidence, (2) juror
misconduct in deliberations prejudiced him and denied him his constitutional right
to a fair trial, (3) the trial court erred in excluding evidence of his 17-year military
career as background evidence, (4) insufficient evidence supports his conviction
for intimidation of a witness, and (5) the trial court erred in imposing a $200
criminal filing fee, a Department of Corrections monthly supervision assessment
fee, a 12 percent interest provision in the Judgment and Sentence, and a $100
DNA sample fee. We remand the Judgment and Sentence for the trial court to
strike the legal financial obligations except for the $100 DNA sample fee. We
affirm in all other respects.
No. 801 03-1/2
BACKGROUND
On November 29, 2017, the Bremerton Police Department arrested
Etpison after he broke objects and a door inside his home with a baseball bat.
Etpison had also allegedly pushed and slapped his two sons.
Etpison did not comply with the police’s commands as they tried to enter
his home. They ultimately used a Taser device to subdue him. After police
detained Etpison, Etpison’s wife, Jasmine Etpison,1 told police that Etpison had
hit her several days prior, leaving bruises that were still visible.
From jail, Etpison made a recorded telephone call to Jasmine. He asked
her if she had called the police, spoke a phrase to her in Palauan2 (translated by
the State’s interpreter as, You better run. When I get out you will feel the
consequences”), and then hung up.
The State charged Etpison with assault in the third degree for hitting
Jasmine several days prior to his arrest, two counts of assault in the fourth
degree for slapping and pushing his two sons, malicious mischief in the third
degree, obstructing a law enforcement officer, intimidating a witness, and
harassment. A second amended information added an alternative charge of
assault in the fourth degree relating to Jasmine.
Pretrial, the State moved to exclude any reference to Etpison’s military
service. In opposition, Etpison argued the evidence served as background
information relating to his relationship with his wife, because the two met while he
1 For clarity, below, we refer to Jasmine Etpison by her first name. We intend no
disrespect.
2 Etpison and his wife speak Palauan fluently.
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was stationed at a military base. The trial judge granted the State’s motion,
deeming the evidence irrelevant because it did not relate to the charges or the
defense’s case.
At trial, Jasmine testified that on Thanksgiving Day, November 23, 2017,
Etpison hit her on her right arm three or four times, which left the bruising that
officers saw when they arrived at Etpison’s home several days later.
Jasmine also testified that Etpison’s telephone call from jail caused her to
fear for her physical safety and gave her concerns about cooperating with law
enforcement because of what he had said to her in Palauan. The State’s
interpreter testified that speakers usually use the Palauan phrase at issue
threateningly, and that it means the receiving person will feel the consequences
physically, mentally, or emotionally.
During deliberations, the jury submitted the following question to the court:
It came to our attention that one of the jurors looked at the court
docket to see what charges he (the defendant) was being charged
with. Is the [sic] a problem for us or can we proceed[?] It was during
jury selection and it was shared he was still in jail[.]
After conducting an inquiry, the trial court determined one juror had looked
at the court docket and shared information that Etpison remained in jail pending
trial. The trial court dismissed the juror who looked at the court docket and
shared the information, and dismissed an additional juror who said they could not
ignore the fact that Etpison remained in jail. The court then individually
questioned the remaining jurors, asking them if they could disregard the
improperly introduced information, if they understood Etpison remains innocent
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until proven guilty, and if they believed the jury as a whole could move forward.
All the remaining jurors answered in the affirmative. The trial court added the
alternate juror and ordered the jurors to begin deliberations anew.
The jury convicted Etpison of fourth degree assault, malicious mischief,
obstructing a law enforcement officer, intimidating a witness and harassment.
The jury found Etpison not guilty of the two charges of fourth degree assault
against his sons. The trial court imposed a $200 criminal filing fee, community
supervision fees, a 12 percent interest provision, and a $100 DNA sampling fee
in the Judgment and Sentence. Etpison appeals.
ANALYSIS
A. Ineffective Assistance of Counsel
Etpison argues that, in violation of ER 404(b), the trial court admitted
evidence that he hit Jasmine on November 23, 2017, resulting in bruising on her
right arm. He characterizes this information as propensity evidence and claims
that his lawyer’s failure to object to it and failure to propose a limiting instruction
constituted ineffective assistance. But the State correctly explains that the
evidence of the bruising constitutes direct evidence relating to the assault charge
for the date range of November21 to November 28, 2017. And given the
admissibility of the evidence, trial counsel did not perform ineffectively.
The United States and Washington Constitutions guarantee criminal
defendants effective assistance of counseL U.S. CONST. amend. VI; CONST. art.
I, § 22. Under Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 20524
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(1984), a defense lawyer’s deficient performance resulting in prejudice entitles a
defendant to reversal of their conviction.
Evidence must be relevant to be admissible; evidence is relevant where it
makes the existence of a fact of consequence in an action more or less likely.
ER 401. But evidence of other crimes, wrongs, or acts is inadmissible to prove
the character of a person to show action in conformity with those previous acts.
ER 404(b).
Etpison argues that the evidence of the assault on Thanksgiving Day
constitutes improper propensity evidence supporting the conviction of fourth
degree assault. But this argument confuses the charges against Etpison. The
State did not charge Etpison with assault against Jasmine for his actions taken
on the night of November 29, 2017. Instead, the State charged Etpison with third
degree assault over a date range of November 21-28, 2017, and in the
alternative, charged him with fourth degree assault over the same date range.
The court instructed the jury to consider the fourth degree assault charge against
Jasmine for the date range of November 21-28, 2017, and not for November 29,
2017. Thus, Jasmine’s testimony that Etpison hit her three or four times on the
back of the arm on Thanksgiving Day, November 23, 2017, was direct evidence
to support the fourth degree assault charge. Given the admissibility of the
evidence, the lack of an objection on propensity grounds or a proposed limiting
instruction does not constitute ineffective assistance of counsel.
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B. Juror Misconduct
Etpison argues that juror misconduct denied him of his right to a fair trial.
The State asserts that Etpison waived this argument by agreeing to proceed after
witnessing the jury affirm that extrinsic evidence would not affect their
deliberations or his presumption of innocence. Assuming, without deciding, that
Etpison did not waive the issue, we conclude that the trial court did not abuse its
discretion by allowing trial to proceed after the juror misconduct; it dismissed the
juror who committed misconduct and the juror who could not ignore extrinsic
information, conducted a proper inquiry of the jury’s ability to disregard extrinsic
information, and ordered that deliberations begin anew.
The law guarantees a criminal defendant to a fair trial by an impartial jury.
U.S. CONST. amend. VI; CONST. art. I § 22. Ajury must be unbiased,
unprejudiced, and free of disqualifying jury misconduct for a defendant to receive
a constitutionally sufficient jury trial. State v. Gaines, 194 Wn. App. 892, 896,
380 P.3d 540 (2016). Where a juror considers information outside of properly
admitted evidence, jury misconduct occurs. Gaines, 194 Wn. App. at 897.
A court presumes prejudice upon a showing of misconduct, but “that
presumption can be overcome by an adequate showing that the misconduct did
not affect the deliberations.” Gaines, 194 Wn. App. at 897 (internal quotations
and citation omitted). Before a jury enters a verdict, “a trial court may ask
questions of the jurors’ subjective ability to disregard extrinsic information,” and
instruct the jury to consider only evidence admitted at trial and not any previously
entered extrinsic information. Gaines, 194 Wn. App. at 898-899. In Gaines, the
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No. 80103-1/7
court concluded that this procedure could properly cure prejudice after a juror
introduced extrinsic information in the middle of deliberations. 194 Wn. App. at
895, 898.
We review a trial court’s investigation of juror misconduct for an abuse of
discretion. Gaines, 194 Wn. App. at 896. “A trial court abuses its discretion
when it acts on untenable grounds or its ruling is manifestly unreasonable.”
Gaines, 1 94 Wn. App. at 896. We similarly review the conclusions from an
investigation of juror misconduct, and a trial court’s decision to excuse or not
excuse jurors, for abuse of discretion. State v. Earl, 142 Wn. App. 768, 776, 177
P.3d 132 (2008).
Here, during deliberations, a juror introduced extrinsic facts by informing
the rest of the jury that Etpison remained in jail during trial. That juror was
dismissed. The court individually questioned the other jurors and dismissed
another juror who indicated they could not ignore that Etpison remained in jail.
The remaining jurors all assured the court that the extrinsic information would not
affect their deliberations. The trial court added the alternate juror and then
ordered the jurors to disregard all previous deliberations and begin deliberating
anew. The court then reasoned that no independent grounds for a mistrial
remained.
By conducting this inquiry, the trial court reaffirmed the jury’s subjective
ability to disregard extrinsic information, as the court did in Gaines. 194 Wn.
App. at 898. Because this questioning took place before the jury reached its
verdict but after deliberations began, a subjective inquiry sufficed. Gaines, 194
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Wn. App. at 898. Further, as in Gaines, the trial court ordered the jury to begin
deliberations anew, ignoring any extrinsic information. 194 Wn. App. at 899.
Thus, the trial court acted within its discretion in conducting its investigation and
reaching the conclusion that there were no grounds for mistrial after taking such
action.
C. Background Evidence
Etpison claims the trial court improperly excluded evidence of his 17-year
military career. He characterizes the information as proper background
evidence. The State claims the court did not abuse its discretion because the
evidence was not probative. We agree with the State.
A defendant may, in some instances, introduce information about their
pertinent character traits in a criminal trial. ER 404(a). But evidence must be
relevant to be admissible, meaning it must make the existence of a fact of
consequence to the action more or less likely. ER 401. And this court has
previously held that a defendant may not introduce background evidence when it
does not speak to a defendant’s pertinent character trait. State v. O’Neill, 58 Wn.
App. 367, 369-370, 793 P.2d 245 (1 996) (disallowing a defendant from
introducing their lack of prior convictions as a means of bolstering credibility
against a driving while intoxicated charge).
We review evidentiary rulings for abuse of discretion. State v. Pirtle, 127
Wn.2d 628, 648, 904 P.2d 245 (1995). A trial court abuses its discretion when its
decision is manifestly unreasonable or is based on untenable grounds or
reasons. State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997).
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No. 80103-1/9
Etpison argues that his military history provides background information
relating to how he and Jasmine initially met ten years ago — on a military base.
But Etpison does not connect their meeting to a fact at issue in the case. Nor
does Etpison demonstrate how his military history might relate to a pertinent
character trait. Given this failure to establish the relevance of the military history,
the trial court did not abuse its discretion by excluding it.3
Assuming the court erred by excluding the evidence, the error was
harmless. “[E]rror is harmless unless, within reasonable probabilities, had the
error not occurred, the outcome of the trial would have been materially affected.”
State v. Gresham, 173 Wn.2d 405, 425, 269 P.3d 207 (2012) (internal quotations
omitted). Information regarding Etpison’s military career did not make any fact at
issue in the case more or less probable. Etpison has not demonstrated how
introduction of the background evidence regarding his meeting Jasmine at a
military base would have assisted the jury in weighing the charges against him.
D. Insufficient Evidence of Witness Intimidation
~ Defense counsel invokes State v. Renneberg, 83 Wn.2d 735, 522 P.2d 835 (1974), and
State v. Brush, 32 Wn. App. 445, 648 P.2d 897 (1982), as examples supporting their position that
background evidence of Etpison’s military career should be admissible. Both cases are
inapposite. In Renneberq, the defendant introduced evidence of her work experience, college
education, and participation in a glee club, drill team, and pep club as a means of painting a
picture of herself as a person unlikely to commit grand larceny. 83 Wn.2d at 738. Here, trial
counsel’s stated purpose for introducing evidence of Etpison’s military career had no bearing on
his likelihood to have committed the accused crimes; indeed, trial counsel conceded a jury might
properly find the history had no such bearing on their determination of guilt. In Brush, the
defendant was charged with arson of his own home. 32 Wn. App. at 446-447. Brush introduced
evidence of his employment history, salary, and financial dealingsas a means of rebutting the
State’s theory that he had a financial motive for arson. Brush, 32 Wn. App. at 451-452. While
this information might be characterized as background evidence, it was probative in rebutting the
State’s theory that Brush had a financial motive to burn down his own home. By contrast, Etpison
advances no similar argument that his military history makes his commission of the crimes
charged against him less likely.
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Etpison argues that insufficient evidence supports his conviction of
witness intimidation, defined by RCW 9A.72.110. The State argues sufficient
evidence supports the conviction. We agree with the State.
In determining whether sufficient evidence supports a conviction, we view
the evidence in the light most favorable to the State and ask whether any rational
trier of fact could have found guilt beyond a reasonable doubt. State v. Salinas,
119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We deferto the jury on issues of
conflicting testimony, credibility of witnesses, and persuasiveness of the
evidence. State v. Thomas, 150 Wn.2d 821, 874-875, 83 P.3d 970 (2004).
Here, we view the evidence in the light most favorable to the State and
ask whether a rational trier of fact could have found beyond a reasonable doubt
that Etpison (1) made a threat, (2) to a current or prospective witness, and (3) by
use of a threat, attempted to:
(a) Influence the testimony of that person;
(b) Induce that person to elude legal process summoning [them] to
testify;
(c) Induce that person to absent [themselves] from such
proceedings, or
(d) Induce that person not to report the information relevant to a
criminal investigation or the abuse or neglect of a minor child, not
to have the crime or the abuse or neglect of a minor child
prosecuted, or not to give truthful or complete information
relevant to acriminal investigation or the abuse or neglect of a
minor child.
RCW 9A.72.110(1). Etpison argues the insufficiency only of the State’s
demonstration he made a threat and that the threat was an attempt to induce or
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No. 80103-1/il
influence Jasmine in connection with the case. Etpison does not dispute that
Jasmine was a current or prospective witness.
1. Threat
Viewing the evidence in the light most favorable to the State, a reasonable
trier of fact could have found that Etpison’s telephone call from jail constituted a
threat.
A “threat” within the meaning of RCW 9A.72.1 10(1) is a direct or indirect
communication of the intent to: Immediately use force against any person who is
present at the time; to cause bodily injury in the future to the person threatened;
to cause physical damage to the property of a person other than the actor, or; to
do any other act which is intended to harm substantially the person threatened or
another with respect to her health, safety, business, financial condition, or
personal relationships. RCW 9A.72.1 10(3)(a), RCW 9A.04.1 10(28)(a), (b), (i).4
Shortly after the police arrested Etpison and took him to jail, Etpison made
a recorded telephone call to Jasmine. On the call, Etpison asked if she had
called the police. Next, Etpison spoke a phrase in Palauan to Jasmine.
According to the State’s interpreter, Etpison told his wife, “You better run. When
I get out you will feel the consequences.” Etpison disputed this characterization
at trial, but we must view the facts in the light most favorable to the State.
The State’s interpreter also testified that speakers usually use the
statement threateningly, and that it means the receiving person will feel the
~ ROW 9A.72.1 10(3)(a)(ii) incorporates by reference ROW 9A.04.1 10(27), which was
amended by 2011 c 166 c § 2, changing subsection (27) to (28).
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No. 80103-1/12
consequences physically, mentally, psychologically, or emotionally. Given this
testimony, a reasonable trier of fact could find beyond a reasonable doubt that by
his statement, Etpison communicated an intent to substantially harm Jasmine
sufficient to constitute a threat.
2. RCW 9A.72.1 10(1)
The State must also have demonstrated that by use of a threat, Etpison
attempted to achieve one of the four outcomes listed in RCW 9A.72.1l0(l).
Viewing the evidence in the light most favorable to the State, a reasonable trier of
fact could have found that Etpison attempted to influence Jasmine’s testimony or
induce her not to testify against him, participate in legal proceedings, or report
information relevant to a criminal investigation, satisfying any of
RCW 9A.72.1 lO(1)(a)-(d).5
After asking whether she had called the police, Etpison told Jasmine that
she “better run.” He also said, “When get out you will feel the consequences.”
This can reasonably be interpreted as an attempt to influence or induce Jasmine
not to testify against him, participate in legal proceedings, or report information
relevant to the criminal investigation. First, the threatening statement was made
in the context of Etpison asking whether Jasmine had called the police. Second,
~ In support of his argument, Etpison cites State v. Brown, 162 Wn.2d 422, 430, 173 P.3d
245 (2007). But in that case, the court found there was insufficient evidence that the defendant
had violated RCW 9A.72.1 10(1)(a), because the defendant’s threat to a third-party victim that she
would pay” if she went to the police was an attempt to prevent her from providing information to
the police and not an attempt to influence testimony. Here, however, Etpison threatened Jasmine
without specifying that he would hurt her if she went to the police, so viewing the evidence in the
light most favorable to the State, his statement can be interpreted as attempting to induce her not
to testify, participate in legal proceedings, or report information relevant to a criminal
investigation.
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if Jasmine “ran,” she would potentially be unavailable to so testify, participate, or
report information. And third, the “consequences” provided an incentive not to so
testify, participate, or report information. From this, a jury could reasonably infer
that Etpison, by use of a threat, attempted to achieve any one of the four
outcomes listed in RCW 9A.72. 110(1).
Because a rational trier of fact could have found the foregoing elements
beyond a reasonable doubt, Etpison’s claim of insufficiency fails.
E. Legal Financial Obligations
Etpison claims that, in the Judgment and Sentence, the trial court erred in
imposing a $200 criminal filing fee, a Department of Corrections monthly
supervision assessment fee, and by including a 12 percent interest provision in
the Judgment and Sentence. The State concedes error on these. We agree.
Under State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018),
discretionary costs may not be imposed on indigent defendants. A defendant’s
indigence is determined at the time of sentencing. RCW 10.01.160(3). The trial
court recognized Etpison’s indigence when it allowed him to pursue his appeal at
public expense.
The $200 criminal filing fee is discretionary. Ramirez, 1 91 Wn.2d at 748.
The community supervision fees are also discretionary. State v. Lundstrom, 6
Wn. App.2d, 388, note 3, 429 P.3d 1116 (2018). The interest accrual provision
of the Judgment and Sentence pertaining to non-restitution legal financial
obligations are also discretionary. RCW 10.82.090 disallows accrual of interest
on non-restitution legal financial obligations imposed as of June 7, 2018, and
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No. 80103-1/14
subsection (2)(a) allows the court to waive interest on the portions of non-
restitution legal financial obligations imposed before June 7, 2018.
Finally, Etpison argues that we should strike the $100 DNA sample fee.
However, the $100 DNA sampling fee is mandatory for offenders whose DNA
has not been previously collected as a result of a prior conviction.
RCW 43.43.7541. Etpison has no prior convictions. Hence, the trial court
properly imposed the DNA sampling fee
Affirmed and remanded to strike the criminal filing fee, community
supervision fees, and interest accrual provision.
WE CONCUR:
f41 ~
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