State v. Ray

1

STATE OF WASHINGTON, Appellant, v. OWEN GALE RAY, Respondent.

No. 86163-8-I

Court of Appeals of Washington, Division 1

July 22, 2024

UNPUBLISHED OPINION

Coburn, J.

Owen Ray was convicted of assault in the second degree and felony harassment following an incident in which he pointed a gun at his wife, which resulted in his wife and children fleeing the family home after police arrived. Ray argues that the trial court improperly admitted patrol car video capturing conversations between his children without the children's consent, in violation of Washington's Privacy Act. At issue is whether exigent circumstances existed that met a statutory exception to requiring police to notify the children they were being recorded. We need not resolve that dispute because any error in admitting the recording was harmless. Ray also challenges the admission of ER 404(b) evidence that he had previously assaulted his wife. Ray additionally argues that the trial court improperly excluded a defense expert witness, that the prosecutor committed misconduct in closing, and that his convictions violate double jeopardy. We affirm.

FACTS

In 2020, Ray and K.R. lived with their three children and dog in DuPont, Washington after Ray was transferred to a new position at Joint Base Lewis- McChord. Ray was a colonel in the United States Army. The marriage began to deteriorate a few years before the family moved to DuPont. Ray began drinking hard alcohol frequently, developed a quick temper and would swear at K.R. As Ray's drinking became more frequent, he progressed from yelling to throwing objects.

In the last six months or so of 2020, Ray would comment about having the control in the relationship, telling K.R. she could not leave him and threatening to "sell th[e] house out from under" her. At issue in this case are two incidents. The first occurred during the summer or fall of 2020 in the front entry way of the family home. The second, the basis for the convictions, occurred the day after Christmas the same year.

During the first incident, Ray was "yelling and cussing" in the front entry way of their home when he grabbed K.R. by the chest and pushed her into the wall by the front door causing K.R. to hit her head on the wall. Though K.R. slept in a locked guest bedroom that night, she did not report the incident and eventually went back to the couple's shared bedroom.

Ray again was "yelling and cussing" at K.R. on the evening of December 26. He had been drinking and became very angry at K.R., accusing her of undermining him in regards to figuring out how their oldest daughter would get to work the next day. While the children and K.R. got ready for bed upstairs, Ray texted K.R., "Way to destroy a father's credibility, as always. Done with this shit."

Ray again got in K.R.'s face, calling her names when she returned to the first floor to attend to the family dog, who recently had surgery, and asked Ray to stop yelling. K.R told Ray to "back off" and stated that she was going to bed. After K.R. returned to the second floor, she could hear Ray become louder and "really aggressive in what he was saying." Ray said "you want to do this?" "let's do this," and "fine I don't care" while pacing in their front entryway. K.R. explained Ray "sounded like he was coming up to pick a fight with me." K.R., from the second floor, saw Ray put on his shoes in the front entry, so K.R. went to the third floor, believing that Ray would not pick a fight with her in front of the children, whose bedrooms were on the third floor.

After getting to the third floor, K.R. observed the two youngest children asleep in the same bed together in her middle daughter's room with the door open. The oldest daughter was still in the third-floor bathroom getting ready for bed. From her location on the third-floor landing, K.R. could see Ray walk toward the garage and heard the garage door open and close. K.R. then saw Ray go to the second floor and "very aggressive[ly]" open all the doors and turn on all the lights. Concerned, K.R. dialed 911 on her cell phone, but did not hit "send." Ray then ascended the stairs to the third floor, where K.R. noticed that he was holding a gun by his side as their daughter came out of the bathroom. K.R. backed into a loft area between the bedrooms and told her daughter to go to bed. Ray said goodnight to their oldest daughter and closed her door before "immediately" turning on K.R. and yelling at her.

K.R told Ray to put the gun down and backed into their middle daughter's room, threatening to call 911. Ray told K.R to "go ahead" and K.R. called 911 before beginning to head down the stairs. K.R. told the 911 operator that her husband was "drunk," that there was a gun "on his person," and that he was "threatening me with it." Upon hearing K.R. give his name to the 911 operator, Ray came back into the room and pointed the gun at K.R. while yelling, waking up their children. Ray raised his arm and pointed the gun at K.R. telling her to hang up the phone. The children began screaming and K.R. attempted to back away from Ray, but stumbled and fell to the floor. While K.R. was on the floor, Ray kicked her in the chest, stomach, and ribs while continuing to point the gun at her. The 911 recording captured Ray yelling, "you are going to force me to kill myself" and "turn it off right now." K.R. told the operator that she and the children could not get out because "he's blocking it" and "if I talk to you he's going to kill me."

K.R. believed she would be shot and did not want her children to see that, so she moved herself to a small opening between her daughter's bed and closet where they could not see her. Ray continued to kick her, kicking her face and causing K.R. to hit her head on the wall. The youngest children were in bed screaming for Ray not to kill their mother or them and begging him to "go away."

Ray then briefly left the room before returning and pointing the gun at K.R. while yelling again. The second time Ray left the room, K.R. got up and locked the door, attempting to barricade it with her daughter's bookcase. On the 911 recording, K.R. tells the operator that "he's going to kill my kids. Help us." When Ray returned to the room and found the door would not open, he kicked until it broke open, sending the bookcase toward K.R. and causing her to again fall to the floor. Ray then pointed the gun at his two children on the bed, who were "hysterical." The youngest child can be heard on the 911 recording crying and saying, "I don't want to die." Ray responds by saying, "you're going to be safe buddy. Don't worry about it." Ray continued to swear at K.R., called her names and then said, "you are safe. The kids are safe. You will go to fucking hell." K.R. positioned herself between the gun and the children while Ray waved the gun around, continuing to point it at K.R. with the children behind her. Ray then backed up to the doorway and turned off the light before raising the gun toward K.R. and the children.

K.R. remained on the line with 911 during the entirety of the incident. In the recording of the phone call, Ray can be heard yelling at K.R., calling her an "asshole" and a "psycho fuck." Ray repeatedly stated "good job" to K.R. and told her to "go to fucking hell." K.R. believed Ray was going to shoot her and the children before he left the room. Ray began yelling about how he could see police outside. Officers from three nearby police agencies had arrived just after midnight and established a perimeter around the house.

K.R. grabbed the children and started for the door before being blocked by Ray. K.R. told Ray to "let them go. Be a dad" and he took a step back. K.R. and the children were able to move past Ray and run to the front door. The couple's oldest daughter had remained in her bedroom on the third floor during the assault and had also called 911. In the call, the oldest daughter said, "My dad's trying to kill himself and he might try to kill my mom, my little sister and my little brother." The oldest daughter said her father threatened her mom and siblings. When the 911 operator asked if he said he was going to harm them, the daughter said, "No, but they're screaming." The daughter said her father said he was not going to surrender and that he was going to kill himself.

When K.R. left the bedroom, she screamed for her oldest daughter to leave the house before running out the front door with the two youngest children. Dash camera footage from a responding police car shows K.R. and the two youngest children running from the home screaming, followed moments later by the oldest daughter. K.R. and the children were rushed into a waiting patrol car and immediately driven away from the house so they were no longer within Ray's eyesight. Patrol car cameras recorded the backseat conversations starting at 12:39 a.m. At 1:05 a.m., an officer alerted K.R. and the children that they were being video and audio recorded while in the back seat.

Responding officers observed Ray enter and exit the balcony on the home's third floor and place a handgun to his head each time he exited. Officers could hear a handgun being "racked" in an attempt to chamber a round. Lakewood police sergeant Jason Catlett was able to contact Ray by phone. On the call, Ray said "I will fucking kill every single one of you; it will be a fucking blood bath." Ray also told the sergeant to "go find out" who Ray was, which the sergeant understood to be a threat based on his later understanding of Ray's military background. The sergeant explained that the nature of the threats appeared to be "there is nothing left for me; I've ruined this. My career is over. I've made a mess of my life. If you come in here, I'm going to kill you."

After entering and...