State of Washington v. Joey Donavon Russell ( 2024 )

FILED
JUNE 25, 2024
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 39367-4-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JOEY DONAVON RUSSELL, )
)
Appellant. )
LAWRENCE-BERREY, C.J. — Joey Russell appeals his conviction for felony assault
in the fourth degree. He contends: (1) the prosecutor committed misconduct by
commenting on the facts underlying two stipulated prior domestic violence convictions,
and (2) remand is required for the sentencing court to strike the victim penalty assessment
(VPA). We disagree with his first argument, agree with his second, and therefore affirm
his conviction but remand for the sentencing court to strike the VPA.
FACTS
In May 2021, Joey Russell moved from Ohio to Goldendale, Washington, to live
with his girlfriend, Jennifer Russell-McEwen. The couple married later that month.
No. 39367-4-III
State v. Russell
In February 2022, after arguing throughout the day over Ms. Russell-McEwen’s
suspicion that Mr. Russell was cheating with her sister, Ms. Russell-McEwen attempted
to leave her apartment. As she attempted to leave, Mr. Russell headbutted her, punched
her in the face multiple times, and threw her to the ground by her hair.
The State charged Mr. Russell with felony fourth degree assault with a domestic
violence enhancement under RCW 9A.36.041(3).1 Before trial, the parties verbally
stipulated to the existence of two or more prior adult convictions for violation of a
protection order—domestic violence.
During its opening statement, the prosecutor explained the State’s burden to prove
the elements of the crime beyond a reasonable doubt and identified the undisputed and
disputed elements:
This is a domestic violence case. It’s assault on the defendant’s partner by
the defendant. I have to prove to you beyond a reasonable doubt, what’s
called the elements of the crime. . . . The question, you’re gonna have to
decide is whether or not it was an assault. Everything else is pretty much
accepted.
That on February 21st, 2022, this happened. There’s not gonna be
any dispute. And within 10 years prior to the assault, the defendant was
found guilty of two or more times of a repetitive domestic violence offense.
Again, no dispute, that at least two of the proven prior offenses were
1
RCW 9A.36.041(3)(b) elevates fourth degree assault from a gross misdemeanor
to a class C felony if the victim is an intimate partner and the defendant has two or more
prior adult convictions within 10 years for certain domestic violence offenses occurring
after July 23, 2017, for which domestic violence against a family or household member
was proved.
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State v. Russell
committed between family or household member again. No dispute. And
then, it happened in the State of Washington, Klickitat County, Goldendale.
No dispute.
What’s the evidence gonna show? The evidence is gonna show that
on February 21st, 2022, there was an argument. Either it was about
whether or not the defendant should go out and—and purchase, go
shopping of some sort, or that the defendant was [sic] felt disrespected. But
what we do know is that the defendant had a criminal history that—of
repetitive domestic violence. Domestic violence—violence—violation of a
protection order, and he got angry. So, he headbutted his partner. He then,
struck her in a harmful or offensive manner, and assaulted her. She then,
called the police. He then, ran away. . . .
....
The defendant had two prior repetitive domestic violence offenses
within the last 10 years. One of them involved a family household member
and knowing that or disregarding that or forgetting that, whatever, he
assaulted his significant other, the person he shared a house with. And
we’re gonna be asking you to look at those facts. Apply that to the law that
the Court is giving you and come back with the verdict of guilty as charged.
Thanks for your attention.
Rep. of Proc. (RP) at 139-41 (emphasis added). Defense counsel did not object to the
emphasized statements.
The State called Ms. Russell-McEwen to testify. On direct examination, she
testified that the charged assault occurred after she and Mr. Russell argued about his
inappropriate relationship with her sister. On the day of the assault, and after their
argument, Ms. Russell-McEwen tried to leave her apartment but Mr. Russell attempted to
hug her. When she rebuffed his attempt, Mr. Russell headbutted her, punched her in the
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No. 39367-4-III
State v. Russell
face multiple times, and threw her to the ground by her hair. She then ran to a friend’s
house and called 911.
Mr. Russell testified in his defense. On direct examination, he explained that on
the day before the assault, Ms. Russell-McEwen kicked him out of her apartment and
obtained a restraining order against him. He added that she had obtained “[m]ultiple
restraining orders” against him. RP at 197. He went on to explain that Ms. Russell-
McEwen’s sister agreed to let him stay with her after he was kicked out. When Ms.
Russell-McEwen found out about this arrangement, she showed up at her sister’s house
and confronted him. Mr. Russell told Ms. Russell-McEwen to leave because she is “not
the one that will go to jail. . . . I’ve done—been in jail over these [no-contact orders],
multiple times.” RP at 198. Ms. Russell-McEwen responded by threatening to call law
enforcement and her sister’s landlord.
Eventually, law enforcement arrived and told Ms. Russell-McEwen to leave. The
officers declined to arrest Mr. Russell because he showed them he had just been served a
restraining order, and Ms. Russell-McEwen came to where he was staying. But later that
evening, Ms. Russell-McEwen allowed Mr. Russell to return to her apartment.
The next morning, both Ms. Russell-McEwen and her sister were in the apartment
together with Mr. Russell. Ms. Russell-McEwen got angry with her sister for touching
Mr. Russell’s leg, and she told her sister to leave. Ms. Russell-McEwen then threatened
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No. 39367-4-III
State v. Russell
Mr. Russell with divorce, smacked him, and said something about his children. Mr.
Russell testified that this provoked him.
During cross-examination, the prosecutor asked Mr. Russell about the no-contact
order:
Q Okay. And—and the whole time you were doing this, you were in
violation of a no contact order?
A One day. We stayed together one day, until they dropped it and she
met me at the porch.
Q Right. And—and there’s—there’s nothing in the no contact order
that says you’re not to have contact with her, except you can have contact
on one day?
A No. No.
Q Course not. You’re not supposed to have contact?
A No. No, you’re not supposed to have it all.
Q Right. And—and you’ve in fact, been convicted of a violation of—
A Yes. I have.
Q —no contact, twice?
A Yes. Because that’s my wife.
Q Both violations of no contact orders, which have. Correct?
A Yes. That’s my wife.
Q All right. So, the Court tells you not to have contact with her, but
you do anyway?
A Yes, sir?
RP at 207-08 (emphasis added). Defense counsel did not object to the emphasized
questions.
The prosecutor next asked Mr. Russell about his children, and he responded by
explaining that he no longer had custody because he and his ex-wife were convicted of
child endangerment. He added that “[t]hey gave my wife three years’ probation and I got
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No. 39367-4-III
State v. Russell
11 and a half years for that. Well, since you’ve already brought up the domestic
violence, I smashed her face in.” RP at 209.
The prosecutor questioned Mr. Russell about the assault and his prior convictions:
Q Okay. And so, then Jennifer gets—thinks you’re cheating with her
sister, she was angry, she slaps you, then?
A After [her sister] touches my leg.
....
Q And then, she started talking about your kids?
A And—yes.
Q And you say, you got provoked?
A Yes.
Q And you hit [and] headbutted her?
A Yes. I did.
Q And then, you grabbed [her] by the hair and threw her to the ground?
A No. I punched her five more times. She fell.
Q So, she fell—
A When I headbutted her, she went up against the window like this,
and when she went to fall I just—I hit her five times.
....
Q So, you admit that you weren’t acting in self-defense and you
assaulted your wife. Correct?
A Yeah.
....
Q . . . And this happened on February 21st?
A Yes.
Q And within the last 10 years prior to this assault, that you’ve been
found guilty, or pled guilty to two or more crimes that were repetitive
domestic violence?
A Yeah.
Q Two counts of violation—
A I got one—two against here now and one on my ex-wife.
Q Okay. Well, so you got the—you were convicted—excuse me.
Domestic violence violation of a no contact order twice—
A Actually,—
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No. 39367-4-III
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Q —in Klickitat County, correct?
A —there’s more than that?
Q Okay. And that happened—I’m sorry. And those convictions
happened in what, 2020?
A One did. And, the other one was—it was longer than that.
....
Q All right. So, both of them happened within the last two years?
A Yeah.
Q And at the time they happened, she was a household member, family,
and also been—and you were married?
A She’s my wife, yes.
Q All right. And—and this all happened in the State of Washington?
A Yes, sir.
RP at 212-13, 216-17 (emphasis added). Defense counsel again did not object to the
prosecutor’s questions about the prior convictions.
After the parties rested, the trial court instructed the jury on the law and also
informed the jury of the parties’ stipulation:
The parties have agreed that certain facts are true. You must accept
as true the following facts:
1. within ten years prior to the currently charged assault, the
defendant was found guilty two or more times of the repetitive domestic
violence offense of Domestic Violence—Violation of a Protection Order;
2. That these two prior offenses occurred after July 23, 2017;
3. That at least two of the proven prior offenses were committed
between family or household members.
Clerk’s Papers at 51.
During closing argument, the prosecutor outlined the jury instructions and
reminded the jurors about his burden to prove the elements of the crime beyond a
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No. 39367-4-III
State v. Russell
reasonable doubt. As he discussed the elements of the crime, he first called the jury’s
attention to the to-convict jury instruction, then told the jury to look at the stipulation
instruction, noting “[t]hat is the agreement between the parties that you must accept these
facts as true.” RP at 243.
The prosecutor then discussed each element individually, including the stipulated
prior convictions:
So, let’s look at what the—what the State has to prove. That this
happened on February 21st, 2022. Is there any question? No. . . . [L]aw
enforcement testified to it. Jennifer testified to it, the defendant testified to
it. It happened on the 21st.
That within 10 years prior to the assault, the defendant was found
guilty of two or more times of any repetitive domestic violence offense.
Well, not only did he testify that he did that, but he stipulated to it. And in
Instruction No. 10, it tells you. That in 10 years prior to the currently
charged assault, the defendant was found guilty of two or more times of
repetitive domestic violence offense domestic violence violation of a
protection order involving Jennifer.[2] So, we know that happened.
That at least two of the proven prior offenses occurred after
September 23rd, 2017. Well, we know that because they—his proven
offenses happened that he stipulated to, happened after he moved here in
[sic] May 14 of 2021 to marry Jennifer on May 29th.[3] So, that all
happened after 2017. So, again there’s—there’s no issue.
That at least two of the proven prior offenses were committed
between family or household members. Again, he stipulated to that. That
at least two of the proven prior offenses were committed between family
and household members. And he testified that it happened with Jennifer a
2
The stipulation did not name Jennifer Russell-McEwen, the victim in the charged
case.
3
Again, the prosecutor tied the stipulated prior convictions to Ms. Russell-
McEwen, even though the stipulation did not tie her to those convictions.
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No. 39367-4-III
State v. Russell
household member, it’s his wife. So,—and then, I also have to prove that
the act occurred in the State of Washington. And again, there’s—there’s no
—it happened in Washington, it happened in Goldendale, it happened on
Shuster Road.
So, then the question becomes, was there an assault? . . .
....
So, the defendant testifies. And he was brutally honest. He admitted
that he assaulted her. He admitted that he headbutted her. He admitted that
he punched her. He admitted all the elements of this crime . . . .
....
Ladies and gentlemen, the defendant is guilty as charged. It’s pretty
straightforward. It’s pretty clear. And I’m asking you to return that
verdict. Thank you.
RP at 243-47 (emphasis added). Again, defense counsel did not object to the
prosecutor’s comments about the prior convictions.
The jury convicted Mr. Russell of felony assault in the fourth degree, and he
timely appealed.
ANALYSIS
PROSECUTORIAL MISCONDUCT
Mr. Russell contends the prosecutor committed reversible misconduct by making
the emphasized statements above about the underlying facts of the stipulated prior
convictions. We disagree.
Prosecutorial misconduct standards
To resolve a claim of prosecutorial misconduct, this court must first inquire
whether the prosecutor made improper comments. State v. Jones, 13 Wn. App. 2d 386,
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No. 39367-4-III
State v. Russell
403, 463 P.3d 738 (2020). The defendant bears the burden of showing that the
prosecutor’s comments were improper and prejudicial. State v. Warren, 165 Wn.2d 17,
26, 195 P.3d 940 (2008).
However, where, as here, the defendant fails to object or request a curative
instruction at trial, the issue of misconduct is waived unless the conduct was so flagrant
and ill intentioned that an instruction could not have cured the resulting prejudice. State
v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997). Under this heightened standard,
the defendant must show that (1) “‘no curative instruction would have obviated any
prejudicial effect on the jury’” and (2) the misconduct resulted in prejudice that “‘had a
substantial likelihood of affecting the jury verdict.’” State v. Emery, 174 Wn.2d 741,
761, 278 P.3d 653 (2012) (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43(2011)). We review allegedly improper comments in the context of the entire argument,
the issues in the case, and the jury instructions. State v. Fisher, 165 Wn.2d 727, 747, 202
P.3d 937 (2009).
The issues in the case and the stipulation
RCW 9A.36.041(1)-(2) provides that a person is guilty of assault in the fourth
degree, a gross misdemeanor, “if, under circumstances not amounting to assault in the
first, second, or third degree, or custodial assault, he or she assaults another.”
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No. 39367-4-III
State v. Russell
RCW 9A.36.041(3)(b)(i) elevates fourth degree assault to a class C felony if the
victim is an intimate partner, and the defendant has two or more prior adult convictions
within 10 years for a repetitive domestic violence offense as defined in RCW 9.94A.030 4
occurring after July 23, 2017, for which domestic violence against a family or household
member was pleaded and proved.
Here, the State charged Mr. Russell with felony fourth degree assault based on two
or more prior convictions of repetitive domestic violence. The parties stipulated to the
existence of two of Mr. Russell’s prior repetitive domestic violence offense convictions,
occurring after July 23, 2017, against family or household members.
A “stipulation” is an express waiver that concedes, for purposes of trial, the truth
of some alleged fact, with the effect that the State need offer no evidence to prove it and
the defendant is not allowed to disprove it. See State v. Case, 187 Wn.2d 85, 90, 384
P.3d 1140 (2016). “While the State must prove every element of the crime beyond a
reasonable doubt, for strategic reasons, defendants charged with felony violation of a
domestic violence no-contact order regularly stipulate to prior convictions that are
elements of the charged crime in order to constrain the prejudicial effect on a jury.”
Id. at 91.
4
Former RCW 9.94A.030(42)(iii) (2022) defines “repetitive domestic violence
offense,” in part, as “[d]omestic violence violation of a protection order.”
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No. 39367-4-III
State v. Russell
First prong: Improper comments
The State argues that the italicized comments in opening and closing were proper.
We disagree.
Prior convictions that are elements of the charged crime involve an accused
person’s legal status, where the prior convictions are wholly independent of the criminal
acts charged and “the fact of the qualifying conviction is alone what matters under the
statute.” Old Chief v. United States, 519 U.S. 172, 190, 117 S. Ct. 644, 136 L. Ed. 2d
574 (1997). Here, the fact of two or more prior convictions for domestic violence is what
matters under RCW 9A.36.041(3)(b). This fact was stipulated to prior to opening
statements.
A stipulation waives the right to a jury trial on that stipulation. Case, 187 Wn.2d
at 90-91. When a defendant stipulates to their legal status, i.e., prior convictions, it is
improper for a prosecutor to admit the name of or the facts of the underlying conviction,
because doing so carries a risk of unfair prejudice that substantially outweighs its
probative value. Old Chief, 519 U.S. at 180-81.
Here, both in his opening statement and closing argument, the prosecutor named
the prior offenses and/or discussed facts of those offenses. This was improper. This
impropriety was not sanitized by the fact that Mr. Russell, during cross-examination,
testified to his prior offenses and some of their underlying facts.
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No. 39367-4-III
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Second prong: Prejudice
Alternatively, the State argues that Mr. Russell cannot show he was prejudiced by
its improper comments. We agree.
During cross-examination, Mr. Russell admitted to the charged crime and also
admitted that it was improper for him to headbutt and hit his wife multiple times, and he
was not acting in self-defense. Quite literally, Mr. Russell conceded to a portion of the
charged crime by his stipulation and confessed to the remainder of the crime during his
cross-examination. We conclude that the State’s improper comments did not prejudice
Mr. Russell.
VPA
Mr. Russell contends the VPA must be struck from the judgment and sentence due
to changes in the law. The State concedes. We accept the State’s concession.
Under former RCW 7.68.035(1)(a) (2018), the sentencing court was required to
impose a VPA on any individual found guilty of a crime. Effective July 1, 2023,
the legislature amended RCW 7.68.035 to preclude superior courts from imposing a
VPA on a defendant who, at the time of sentencing, was found to be indigent as defined
in RCW 10.01.160(3). See LAWS OF 2023, ch. 449, § 1(4). Statutory amendments
related to legal financial obligations imposed upon conviction generally apply to all cases
pending on direct appeal that are not yet final. See, e.g., State v. Wemhoff, 24 Wn. App.
13No. 39367-4-III
State v. Russell
2d 198, 201-02, 519 P.3d 297 (2022); State v. Ramirez, 191 Wn.2d 732,749,426 P.3d
714 (2018).
Mr. Russell's case is pending on direct appeal and is not yet final, and the record
shows that the sentencing court found him to be indigent. Therefore, the amended statute
applies, and we direct the sentencing court to strike the VPA from his judgment and
sentence.
Affirmed, but remanded to strike the VPA.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
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Lawrence-Berrey, C.J. ~
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WE CONCUR:
Fearing, J. ) Pennell, J.
14