State v. Breimon

STATE OF WASHINGTON, Respondent, v. KEVIN M. BREIMON, Appellant.

No. 38381-1-II

Court of Appeals of Washington, Division 2

October 27, 2009

UNPUBLISHED OPINION

Hunt J.

Kevin M. Breimon appeals his jury convictions for second degree domestic violence assault and felony harassment (death threat). He argues that (1) the trial court erred in allowing testimony about the victim's prior inconsistent statements after the victim admitted to having made the prior inconsistent statements, (2) his trial counsel's representation was ineffective in failing to object to a victim advocate's testimony about a different prior inconsistent statement without allowing the victim an opportunity to admit or to deny the statement, and (3) the judgment and sentence contains a scrivener's error. Breimon also raises numerous issues in his pro se Statement of Additional Grounds for Review^[1] (SAG). We affirm Breimon's convictions and sentence, but we remand for correction of the clerical error in his judgment and sentence.

FACTS

I. Background

A. Victim's Statements to Deputy

On July 5, 2008, Sonia Johnson called Clark County law enforcement and reported that her boyfriend, Kevin Breimon, had injured and threatened her. That same day, Clark County Deputy Sheriff Jeremy Brown contacted Johnson at her ex-husband's house, where Johnson had gone because she was afraid of Breimon. Johnson told Brown that Breimon had assaulted her twice in her home. Johnson was upset, crying "very shaken up," and appeared fearful.

Brown also noted Johnson's several injuries, which she stated had occurred during the altercations with Breimon. These injuries included: (1) abrasions on her calf and right wrist, (2) bruising to her left shoulder/bicep area, and (3) an obviously swollen finger. Johnson told Brown that Breimon had bent her finger back until it popped. During his contact with Johnson, Brown did not note any indications that Johnson might have been drinking.

B. Smith Affidavit

Brown had Johnson complete a Smith affidavit^[2]―her written statement about the assault and harassment and her written response to numerous written questions, often annotated with additional information.^[3] Johnson stated that on July 1, she and Breimon had been arguing. Breimon grabbed her face and squeezed it so hard she could not breathe; smashed her glasses into her face; and, after noticing some handwriting on her hand, grabbed her finger and bent it backward "until it cracked." Johnson eventually managed to grab her keys and leave when Breimon became distracted.

On July 3, Johnson and Breimon were arguing about her ex-husband's child support payments when Breimon lunged at her, hit the table in front of her, grabbed her face, and told her she did not respect him. Johnson managed to calm Breimon by telling him that she loved him. During this altercation, Breimon threatened to kill Johnson and her ex-husband if they reunited.

Johnson was afraid to return home or to go to work because Breimon knew where she lived and worked and she was "[a]fraid of him breaking [her] doors down." Johnson's written statements were virtually identical to her oral statements to Brown. Johnson signed the affidavit under penalty of perjury.

C. Breimon's Arrest and Statements

Because Johnson had told Brown that Breimon would likely run from law enforcement officers, Brown went to Johnson's apartment to contact Breimon with backup, including a K-9 unit. Breimon was cooperative, and Brown arrested Breimon without incident.

After Brown advised Breimon of his Miranda^[4] rights, Breimon denied knowing anything about Johnson's injuries or the details of the alleged assaults; he also denied having been verbally or physically abusive to Johnson that week. Although Brown had mentioned to Breimon that the alleged incidents had occurred that week, Brown had not told Breimon exactly when. Yet Breimon stated repeatedly, "[W]hy would she report four days later that I did this?" I Report of Proceedings (RP) at 53 (emphasis added).

D. Victim's Statements to Doctor Jacobson

On July 7, two days after Johnson reported the assault and after Breimon's arrest, she saw Dr. Gail Jacobson about her (Johnson's) injured finger, which X-rays revealed was fractured. Dr. Jacobson found Johnson to be quiet and reluctant to talk about the incident. But she did tell Dr. Jacobson that she had injured her finger when "her boyfriend grabbed her finger and pulled backwards, hyperextending it." I RP at 26. Johnson did not, however, explain why she had waited several days to report the injury.

Dr. Jacobson believed that although there were many ways this injury could have occurred, the injury was consistent with Johnson's explanation. Dr. Jacobson saw no external injuries on Johnson's finger. During her contact with Johnson, Dr. Jacobson did not notice the smell of any intoxicants.

II. Procedure

The State charged Breimon with second degree assault/domestic violence^[5] and felony harassment (death threat)/domestic violence.^[6] Before trial, Johnson informed the State that she intended to recant her prior statements to Brown and Dr. Jacobson, asserting that (1) Breimon had not assaulted or threatened her, and (2) she had injured her finger by shutting it in a car door.

A. State's Evidence

At trial, the State presented testimony from Dr. Jacobson, Brown, Johnson, Johnson's friend Stacy Dunn, and victim advocate Amy Harlan.

1. Dr. Jacobson's testimony

Dr. Jacobson testified as described above. Over Breimon's hearsay objections, the trial court admitted Dr. Jacobson's testimony about Johnson's explanation of how she had injured her finger, as statements made for the purpose of medical diagnosis or treatment.^[7]

2. Deputy Brown's testimony

Before the State called Brown, and outside the jury's presence, the State raised an issue about the order of testimony. The prosecutor stated, "Obviously, since my victim will be recanting, I'll be using [Deputy Brown's testimony] to impeach her." I RP at 38. The parties discussed whether the State could present Brown's impeachment testimony before Johnson testified and recanted her prior statements on the witness stand. The State asserted that it was not calling Brown solely to offer impeachment testimony. The trial court allowed the State to call Brown before the jury heard Johnson's recantation, apparently limiting this testimony to non-impeachment testimony. Breimon did not object.

On direct examination and later as a rebuttal witness, Brown testified as described above. Brown also testified about the circumstances under which Johnson had filled out the Smith affidavit.

3. Johnson's testimony

After Brown testified, the State called Johnson. Throughout her testimony, Johnson asserted that she had not wanted the case to go forward and that she did not want to be in court.

Johnson testified that (1) she was currently 36 years old; (2) she had known Breimon since she was 15; (3) they had been in a romantic relationship from the time she was 15 until she was 20; (4) they had two children, who were now 16 and 17 years old; (5) she and Breimon were apart for about 13 years, but they had since reestablished the relationship; (6) Breimon was living with her at the time of the alleged incidents even though he was not an authorized tenant; (7) her landlord had threatened her with eviction for allowing an unauthorized person to live in her apartment; (8) she (Johnson) had been afraid of Breimon during their previous relationship but was not currently afraid of him; and (9) she still loved and cared for Breimon.

Johnson admitted that she had told Brown that Breimon had assaulted, injured, and threatened her, and that she had told Dr. Jacobson that Breimon had injured her (Johnson's) finger. But Johnson claimed that her earlier statements to Brown and Dr. Jacobson and her statements in the Smith affidavit had been lies. She asserted that she had lied because she was trying to find a way to get Breimon out of her apartment in order to avoid eviction.

Johnson further asserted that (1) around the time of the alleged incidents, she had been drinking regularly; (2) she had injured her finger some time before she called the police, when she accidentally shut it in a car door after reaching into the car to grab her purse; (3) this injury occurred when she was with her friend Stacy Dunn; and (4) she was drunk when she called the police, reported the assault and harassment, and completed the Smith affidavit. Over Breimon's objections, the State admitted Exhibit 7, the Smith affidavit, as substantive evidence under ER 801(d)(1)(i).

4. Stacy Dunn's testimony

Johnson's friend Stacy Dunn, testified that Johnson had called and said that she had had Breimon arrested, that she was drunk, and that she had lied to the police. Dunn corroborated that Johnson had hurt her (Johnson's) finger in Dunn's presence a few days before Breimon went to jail. Dunn further testified Johnson had said that although she (Johnson) had made up the allegations when she called the police, she was unable to recall everything she had said because she had been drunk when she called. Dunn asserted that Johnson had a serious drinking problem.

5. Amy Harlan's testimony

Amy Harlan, a victim advocate from the Domestic Violence Prosecution Center, testified that she had talked to Johnson after Johnson reported the incidents. Johnson had (1) made it clear from the start that she did not want the case to proceed, (2) stated that her statements to the police were lies, and (3) stated that she had intentionally slammed her finger in a car door in order to have an injury to report to the police. Harlan further testified that Johnson had not said that she had been with anyone when she slammed her finger in the car door and...