State Of Washington v. Sokha Suong ( 2014 )

COURT OF APPEALS
DIVISION II
2014 DEC 30 AM 9: 45
IN THE COURT OF APPEALS OF THE STATE l i` SiJt
BY
DIVISION II T
STATE OF WASHINGTON, No. 44580 -8 -II
Respondent,
v.
SOKHA SUONG, UNPUBLISHED OPINION
Appellant.
WORSWICK, P. J. — Sokha Suong appeals his convictions for one count each of unlawful
imprisonment, first degree burglary, second degree assault, felony harassment, and ten
misdemeanor counts of violating a domestic violence court order. He argues that the trial court
erred by ( 1) refusing to sever the first group of charges from the domestic violence court order
violations, ( 2) excluding a potential defense witness from the courtroom, and (3) giving " to-
convict" instructions that failed to include every element of the domestic violence court order
violation charges. We find no error and affirm.
FACTS
A. Unlawful Imprisonment, Burglary, Assault, and Felony Harassment
Jasmine Bogle worked overnight as a licensed practical nurse at the house of her client.
One night, her ex- boyfriend, Sokha Suong, came to her workplace, asking if the two could
resume their relationship. She refused and asked him to leave. When she later found him
standing outside the house, she again asked him to leave. A few hours later, Suong knocked on
t he door and Bogle answered. Suong " got his foot in the doorway, put [ Bogle] in ... a
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chokehold, and started dragging [ her] to the kitchen." 2 Verbatim Report of Proceedings ( VRP)
at 159. Bogle could not breathe. In the kitchen, Suong began opening kitchen drawers. He
grabbed a pair of scissors, held them to Bogle' s throat, and said, " Bitch, if you don' t do exactly
what I fucking tell you to do, I' m going to fucking stab you." 2 VRP at 167. Bogle felt her life
was threatened. Suong was charged in an amended information with one count each of first
degree kidnapping, first degree burglary, second degree assault, and felony harassment.1 Each of
these charges bore a domestic violence sentencing aggravator.
B. No Contact Orders
The trial court issued two orders restricting Suong from contacting Bogle. It issued an
order for protection and it also issued a domestic violence no contact order.3 Despite these
orders, Suong continued to contact Bogle. On August 23, Bogle received a collect call from,
someone identifying himself as Suong in Suong' s own voice. Bogle did not accept the call. Her
cell phone displayed a total of seven phone calls received from the same collect number. Police
obtained a record. of Suong' s phone call history from Clark County Jail; it showed 17 outgoing
phone calls to Bogle' s phone number. When confronted with this information, Suong initially
denied that the phone number he had tried to reach was Bogle' s, but upon seeing the call log, he
admitted that he had tried calling Bogle because " I just can' t help it, I need to talk to her. I love
her and all that she said happened was a lie." Clerk' s Papers ( CP) at 7.
1 RCW 9A.40. 020; RCW 9A.52. 020; RCW 9A.36.021; RCW 9A.46. 020.
2 RCW 26. 50. 060.
3 RCW 10. 99. 040.
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Suong also wrote 17 letters and postcards to Bogle on different dates between August 23
and October 11. Bogle identified Suong' s handwriting on the letters. Some of the letters were
addressed to Bogle' s residence but addressed to another woman' s name — a woman who had
never lived at Bogle' s residence or received mail there. The letters were of a romantic nature
apparently unrelated to the assault incident or the charges.
Consequently, the State charged Suong in an amended information with 10 misdemeanor
counts of domestic violence court order violation.4 The first count was based on the phone calls
on August 23, and the remaining counts were based on the letters written to Bogle. Suong
asserted no affirmative defenses; instead, he asserted a general denial to all charges.
C. Motion To Sever
Suong moved to sever the misdemeanor domestic violence court order violation charges
from the felony charges, arguing that it would be prejudicial to present the evidence of these
crimes together.
At a hearing on the motion, the State represented to the trial court that the letters were
romantic, not threatening, and the letters did not reference the assault incident. The State argued
that the letters were admissible to show Suong' s disposition towards this victim and a motivation
for all the crimes. The State argued that the letters would help prove the essential element of the
4 The charges did not explicitly state which order Suong was accused of violating. They read, in
pertinent part: " That he, SOKHA SUONG, in the County of Clark, State of Washington, on or
about [ pertinent. date], with knowledge that the Clark County Superior Court, had previously
issued a protection order or no contact order pursuant to Chapter 10. 99, 26. 50 RCW in Cause
No. 12 -1 - 01473 - 6 and / or 12 -2 -06477 - 0, did violate the order while the order was in effect by
knowingly violating the restraint provisions therein." CP at 27 -29.
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domestic violence aggravators that Bogle and Suong were in a relationship. The State also
argued that some witnesses would be called to both trials if the charges were severed.
The trial court remarked that " the evidence in [ the domestic violence court order
violations] does not appear to me to be necessarily admissible" with regard to the four felony
counts. 1 VRP at 58. The court also said, however, that the domestic violence court order
violation evidence " bears some slight probative value with regard to whether [Bogle and Suong]
had a previous relationship," which would help the jury determine whether they were household
members for the domestic violence sentencing aggravators on the felony charges. 1 VRP at 59.
The court noted that evidence of the attack would be inadmissible in a trial on the no- contact
order violations alone. The court summarized that cross -admissibility of evidence on the felony
and misdemeanor charges was " limited." 1 VRP at 60.
Next, the court observed that Suong had no special defenses to any of the charges. The
court denied the motion to sever, ruling that the " factors outlined in State v. Russell, 125 Wash. 2d
24, 62 -3, 882 P.2d 747, 772 -3 ( 1994), State v. Lough, 125 Wash. 2d 847, 852, 889 P.2d 487, 494
1995), and the need for judicial economy weigh in favor of joining all counts in one trial." CP
at 66 -67. The court instructed the jury in a limiting instruction to consider each count separately.
D. Exclusion ofPotential Witness
At trial, the State noticed that the defense investigator, Mr. Morrow, was present in the
courtroom. The State suggested that Morrow was a potential defense witness, although his name
did not appear on the witness list. The State moved to exclude Morrow from the courtroom
because the trial court had excluded all witnesses. Suong insisted that he did not yet expect to
call Morrow as a witness, but might do so in rebuttal. Suong argued that Morrow' s presence
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assisted with the proceeding " as far as getting relevant pages of transcripts, etcetera, in
anticipation of cross -examination." 2 VRP at 144. The trial court excluded Morrow, finding that
Suong could not commit to not calling Morrow for rebuttal testimony, and had not shown that
Morrow' s presence was necessary. Morrow left the courtroom.
E. Jury Instructions
On each count of domestic violence court order violation, the trial court instructed the
jury that:
To convict the defendant of the crime of Violation of a Court Order ... each
of the following elements of the crime must be proved beyond a reasonable doubt:
1) That on or about [ pertinent date], there existed a no- contact order
applicable to the defendant;
2) That the defendant knew of the existence of this order;
3) That on or about said date, the defendant knowingly violated a restraint
provision of the order prohibiting contact with a protected party; and
4) That the defendant' s act occurred in the State of Washington, County of
Clark.
CP at 127 -36.
The jury instructions further provided: " A person commits the crime of Violation of a
Court Order when he or she knows of the existence of a protection order or no- contact order, and
knowingly violates restraint provisions of the order prohibiting contact with a protected party."
CPat125.
F. Convictions and Appeal
At trial, the State' s evidence supporting the felony charges included testimony from
police officers who responded to the scene after Suong attacked Bogle. They testified that Bogle
was very upset, that she told them what Suong had done, and that a floor mat was askew.
Evidence also included testimony from Bogle' s parents, who recalled seeing. Bogle very upset
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after the attack. Bogle testified about the attack, and also testified about receiving phone calls
and letters from Suong. In support of the misdemeanor charges, the State also presented
testimony from police officers who investigated Suong' s mail and phone calls to Bogle. The
court admitted Suong' s letters and a call log as evidence of his contact with Bogle.
A jury found Suong guilty as charged of first degree burglary, second degree assault, and
felony harassment, and also found him guilty of the lesser included offense of unlawful
imprisonment, instead of kidnapping. The jury further found that Suong and Bogle.were
members of the same family or household, so each of these verdicts included a domestic violence
sentencing aggravator. The jury also found Suong guilty as charged of ten counts of
misdemeanor domestic violence court order violations. Suong appeals.
ANALYSIS
I. DENIAL OF MOTION To SEVER DOMESTIC VIOLENCE COURT ORDER VIOLATIONS
Suong argues that the trial court erred by refusing to sever the misdemeanor domestic
violence court order violation counts from the felony counts. He argues that ( 1) the evidence of
the underlying felony charges was comparatively weaker than the evidence of the violation of
no- contact orders, ( 2) his defenses were different for the two groups of charges, ( 3) the trial
court' s limiting instruction was too vague, and ( 4) evidence of Suong' s violation of the no-
contact orders constituted character evidence when considered alongside the felony charges. We
hold that the trial court did not abuse its discretion in refusing to sever.
A. Standard ofReview
We review a trial court' s denial of a motion to sever for manifest abuse of discretion.
State v. Bryant, 89 Wn. App. 857, 864, 950 P.2d 1004 ( 1998). The trial court abuses its
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discretion if its decision is manifestly unreasonable or based upon untenable grounds or reasons.
State v. Blackwell, 120 Wash. 2d 822, 830, 845 P.2d 1017 ( 1993). Untenable grounds or reasons
exist where the trial court relied on facts unsupported in the record, applied the wrong legal
standard, or adopted a view that " no reasonable person would take." State v. Rohrich, 149
Wash. 2d 647, 654, 71 P.3d 638 ( 2003).
B. Refusal To Sever Not Manifestly Prejudicial
Washington' s liberal joinder rule allows charges to be joined in a charging document if
they are " 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)( 2). State v. Thompson, 88 Wash. 2d 518, 525, 564,
P. 2d 315 ( 1977), overruled on other grounds by State v. Thornton, 119 Wash. 2d 578, 835 P.2d 216
1992). We construe the rule expansively to promote the public policy of conserving judicial and
prosecution resources. Bryant, 89 Wash. App. at 864.
But even offenses properly joined under CrR 4.3 may be severed under CrR 4. 4
whenever the trial court " determines that severance will promote a fair determination of the
defendant' s guilt or innocence of each offense." CrR 4. 4( b); State v. Bythrow, 114 Wash. 2d 713,
717, 790 P.2d 154 ( 1990). When seeking severance ofjoined charges, a defendant must
demonstrate that a joined trial would be " so manifestly prejudicial as to outweigh the concern for
judicial economy." Bythrow, 114 Wash. 2d at 718. Examples of prejudice include circumstances
where ( 1) the defendant has to present possibly conflicting defenses for the offenses, ( 2) the jury
may infer guilt on one charge from evidence presented on another charge, or (3) the cumulative
evidence may lead to a guilty verdict on all charges when, if considered separately, the evidence
would not support every charge. Bythrow, 114 Wash. 2d at 718.
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Trial courts must consider four factors when determining whether the potential for
prejudice requires severance: ( 1) the strength of the State' s evidence on each count, (2) the
clarity of defenses as to each count, ( 3) the court' s instructions to the jury to consider each count
separately, and ( 4) the cross -admissibility of evidence for the other charges even if they were
tried separately. State v. Russell, 125 Wash. 2d 24, 63, 882 P.2d 747 ( 1994). Finally, trial courts
must weigh any residual prejudice against the need for judicial economy. Russell, 125 Wash. 2d at
63.
Here, the trial court did not abuse its discretion by failing to sever the charges because the
joint trial was not so manifestly prejudicial as to outweigh the concerns for judicial economy.
We look to the four Russell factors and the trial court' s consideration of them to determine
whether the trial court abused its discretion.5
First, the evidence on the felony charges was not significantly weaker than the evidence
of the misdemeanor no- contact order violations. Strong evidence supported both sets of charges.
In support of the felony charges, police officers who responded to the attack incident at Bogle' s
workplace testified, as did Bogle, recalling that Suong attacked Bogle and Bogle was upset
afterward. Bogle' s parents testified that Bogle was upset immediately after Suong attacked her.
In support of the no- contact order violation charges, the State presented police testimony,
Bogle' s testimony, and admitted the mail and phone records into evidence. Thus, there was not a
5 The trial court generally considers a motion to sever before trial and before taking any
testimony. While it is unusual to consider whether the trial court abused its discretion based on
facts it could not have known at the time, our cases take into account the entire scope of the trial
as it occurred, even after the trial court' s ruling, in determining whether it was an abuse of
discretion to deny a motion to sever. See State v. Frasquillo, 161 Wash. App. 907, 918, 255 P.3d
813 ( 2011); State v. Sutherby, 165 Wash. 2d 870, 885, 204 P.3d 916 ( 2009).
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disparity in the strength of the State' s evidence on the felony charges as compared with the no-
contact order violation charges that resulted in manifest prejudice due to the joint trial.
Second, Suong' s defenses to each count were clear: he presented a general denial on all
counts. He presented no special defenses. Therefore, Suong' s defenses did not conflict in any
way. Suong argues that he presented different defenses, but this assertion is not supported by the
record or the briefing. 6 He generally denied all the charges. Suong did not testify in his own
defense. Thus, there was no risk that the jury would have been confused by his defenses.
Third, the trial court instructed the jury to consider each count separately. Suong argues
that the trial court' s limiting instruction was too vague, because it should have told the jury
which evidence was associated with a specific group of counts and what evidence was not." Br.
of Appellant at 16. But the trial court' s instruction echoed the language of the third Russell
prong exactly: it instructed the jury to consider each count separately. Russell does not require
more specificity. Russell, 125 Wash. 2d at 63. We presume that juries follow the trial court' s
instructions. Russell, 125 Wash. 2d at 84. Therefore, the court' s instruction to the jury reduced any
potential prejudice from a joint trial.
Fourth, the evidence of the no- contact order violations would have been cross -admissible
in a separate trial on the other counts. Suong argues that this evidence was character evidence
regarding Suong' s propensity to attack Bogle. But it was admissible for another purpose: to
6
Suong' s brief states, " In this case, the defense on the felony charges was that they simply didn' t
occur. By contrast, there was little defense to the no contact order charges other than attempting
to point out errors in the admission of the state' s documentary evidence. In fact there was little
defense to the misdemeanor no contact order charges." Br. of Appellant at 15.
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establish that Bogle and Suong were in a relationship for the purposes of proving the domestic
violence aggravators.
Furthermore, a separate trial is not required even when some evidence is not cross -
admissible. Bythrow, 114 Wash. 2d at 720. Though evidence of the underlying attack may not
have been admissible in a trial on the no- contact order violations, this factor alone does not
require a separate trial. Where the issues are relatively simple and trial lasts only a few days, the
jury can reasonably be expected to compartmentalize the evidence relating to separate charges.
Bythrow, 114 Wash. 2d at 721. Here, the trial lasted only four days and involved relatively simple
issues. Where some evidence is not cross -admissible, the defendant bears the burden of
demonstrating specific prejudice from a joint trial. 114 Wash. 2d at 720. Suong has not done so
here. Bare assertions of the risk of general prejudice do not suffice. State v. Hentz, 32 Wash. App.
186, 190, 647 P.2d 39 ( 1982), rev 'd on other grounds, 99 Wash. 2d 538 ( 1983).
Finally, this court looks to the relative strength of the state' s evidence to determine
whether the inclusion of the contested evidence required severance. Bythrow, 114 Wash. 2d at 721-
22. Where the evidence is strong on each count, we presume that the jury did not base its finding
of guilt on inadmissible evidence. 114 Wash. 2d at 721 -22. Here, as discussed above, the State' s
evidence was strong on both sets of counts. Because we presume that the jury was able to
compartmentalize the evidence and because the evidence was strong, the joint trial here did not
prejudice Suong.
Given these factors, any potential prejudice arising from a joint trial did not outweigh the
substantial need for judicial economy. Russell, 125 Wash. 2d at 63. Overall, while it is possible
that Suong may have suffered some prejudice from a joint trial, the law requires that the
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defendant demonstrate a manifest prejudice that denied him a fair trial. Bythrow, 114 Wash. 2d at
718. Here, Suong has failed to meet his burden to prove that a joint trial was so prejudicial that it
outweighed the benefits ofjudicial economy in this case.
Accordingly, Suong has failed to show that the trial court abused its discretion by
refusing to sever the properly joined charges. Instead, it had reasonable grounds for deciding
that each Russell factor did not support the need to sever charges. The trial court' s decision was
not manifestly unreasonable.
II. EXCLUSION OF POTENTIAL WITNESS
Suong argues that the trial court abused its discretion by excluding his investigator from
the courtroom for being a potential witness. We disagree.
A. Standard ofReview
We review the exclusion of potential witnesses from the courtroom for an abuse of
discretion. State v. Schapiro, 28 Wn. App. 860, 867, 626 P.2d 546 ( 1981); State v. Skuza, 156
Wash. App. 886, 895 -96, 235 P.3d 842 ( 2010).
B. No Abuse ofDiscretion in Excluding Potential Witness
ER 615 provides:
At the request of a party the court may order witnesses excluded so that
they cannot hear the testimony of other witnesses, and it may make the order of its
own motion. This rule does not authorize exclusion of ... ( 3) a person whose
presence is shown by a party to be reasonably necessary to the presentation of the
party' s cause.
Therefore, the trial court retains discretion to remove witnesses unless a party shows that the
person' s presence is necessary.
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Here, Suong had not included his investigator, Mr. Morrow, on the witness list, had not
decided whether or not Morrow would testify, and could not rule out the possibility that he
would call Morrow to testify. When the State requested that Morrow be removed, Suong bore
the burden of demonstrating that Morrow' s presence was reasonably necessary to the
presentation of Suong' s case. See ER 615( 3). Suong argued that Morrow' s presence helped
Suong' s case " as far as getting relevant pages of transcripts, etcetera, in anticipation of cross -
examination." 2 VRP at 144. Because the trial court had sufficient reason to believe Morrow
might be called as a rebuttal witness, it ordered him excluded. This decision was within the trial
court' s discretion. Suong failed to carry his burden of demonstrating the necessity of Morrow' s
presence because the reasons given for the necessity of his presence were weak: Suong argued
that Morrow would help with administrative tasks that anyone with clerical skills could perform.
Therefore, the trial court did not abuse its discretion by excluding Morrow. He was properly
excluded because he was a potential defense witness and was not reasonably necessary to the
presentation of Suong' s defense.
III. SUFFICIENCY OF " TO- CONVICT" INSTRUCTIONS
Suong argues that the " to- convict" instructions for the domestic violence court order
violations failed to include every element of the crimes charged because they excluded the
element of proving the type of no- contact order allegedly violated. We disagree.
A. Standard ofReview
W]here a to- convict instruction omits an essential element of a charged crime, it is
constitutionally defective and the remedy is a new trial unless the State can demonstrate that the
omission was harmless beyond a reasonable doubt." State v. Kirwin, 166 Wash. App. 659, 669,
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271 P.3d 310 ( 2012). The elements of a crime are those ' that the prosecution must prove to
sustain a conviction. "' State v. Miller, 156 Wash. 2d 23, 27, 123 P.3d 827 ( 2005) ( quoting
BLACK' S LAW DICTIONARY 559 ( 8th ed. 2004)). We review alleged errors in jury instructions de
novo. State v. Becklin, 163 Wash. 2d 519, 525, 182 P.3d 944 ( 2008).
B. All Elements Included
Suong argues that the RCW provision under which the no- contact orders had been issued
was a judicially- created element of the charged no- contact order violations, and therefore, the
to- convict" instructions failed to include an essential element of the charged offense. Suong
cites two overturned decisions to support his argument, State v. Arthur, 126 Wash. App. 243, 108
P.3d 169 ( 2005), 7 overruled by State v. Miller, 156 Wash. 2d 23, 123 P.3d 827 ( 2005), and State v.
Salas, 74 Wn. App. 400, 873 P.2d 578 ( 1994), rev' d by 127 Wash. 2d 173 ( 1995).
Questions of law such as the validity of a no contact order are for the judge, not the jury,
to decide. Miller, 156 Wash. 2d at 31. The " existence of a valid court order is not a statutory
element" of RCW 26. 50. 110, under which Suong was convicted. 156 Wash. 2d at 31.
Here, the " to- convict" instructions for the no- contact order violations required the jury to
find that Suong violated a " no- contact order applicable to" him. CP at 127 -36. In Miller, the
authority under which the no contact order was issued was not an essential element of the offense
7 Arthur explicitly only addresses " the proper procedure to be used when a violation of [Former]
RCW 26. 50. 110( 5) [( 2009)] is charged." 126 Wash. App. at 247. It analyzes only subsection ( 5),
which is a felony violationrequiring proof of prior violations. Suong was charged under the
misdemeanor statute, subsection ( 1), which does not require proof of prior violations. Arthur' s
reasoning regarding felony violations under subsection (5) does not apply to misdemeanors
under subsection ( 1).
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because it was not an element the State was required to prove. 156 Wash. 2d at 31. Suong' s
argument fails.
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. 040, it is so ordered.
We concur:
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