IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

### STATE OF WASHINGTON, ) ) Respondent, ) ) v. ) ) 

### EDWARD ALBERT THAVES, ) ) Appellant. ) J ro o <=3 NO. 67238-0-1 CZ r~^ ~1" o -. • **— ~n

_ DIVISION ONE

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u" crs> UNPUBLISHED OPINION •• '.' '"

- FILED: June 10, 2013
Lau, J. — Edward Thaves challenges his convictions for second degree assault 

### and unlawful imprisonment, arguing thatthe trial courterred in admitting a recording of
a police officer's interview with the victim. Thaves also challenges his exceptional sentences based on thejury's finding ofthe aggravating factor of a pattern ofdomestic violence abuse under RCW 9.94A.535(3)(h)(i), arguing that insufficientevidence 

### supports the aggravating factor, the statute is void for vagueness, and the proceedings violated due process. He also filed a statement ofadditional grounds for review. Because Thaves fails to demonstrate error, we affirm. FACTS Around 9 a.m. on January 19, 2011, Erica Dawson called 911 and reported that 

### her boyfriend, Edward Thaves, choked and threatened her and she feared he would kill her. Dawson repeatedly told the operatorto hurry, then hung up and called back a 

### shorttime later. She repeated the address, pretending she was talking to a friend.67238-0-1/2 

### Then Dawson whispered to the operator, "Hurry, hurry, hurry, hurry. Hurry." Ex. 18 at 4. While the operator listened, Dawson told Thaves that she wanted to leave because she was scared of him. The call ended with Dawson screaming and sounds of a struggle. When Kent police officers arrived, they heard a woman screaming and crying, a


### man yelling, and a loud thump, like "a body hitting the floor." Verbatim Report of Proceedings (VRP) (Apr. 14, 2011) at 166. When the officers knocked and announced their presence, no one responded. The officers kicked down the door and arrested 

### Thaves. Dawson made several statements to police indicating she feared Thaves would kill her. One officer observed that Dawson was "really scared," crying, and "frantic." VRP (Apr. 14, 2011) at 171-72. Officer Scott Rankin then interviewed Dawson and recorded her statement. Officer Rankin noticed that Dawson had marks on her neck, redness and swelling around her eyes and cheeks, and blood on the sides ofher 

### mouth. Officer Rankin observed that Dawson was initially"matterof fact," but became 

### "visibly emotional and started crying" whiledescribing the recentevents. VRP (Apr. 14, 2011) at 141. The State initially charged Thaves with second degree assault and unlawful imprisonment, designating both counts as domestic violence offenses. While 

### he was in jail,Thaves made several telephone calls to Dawson, urging her to either 

### change her story orfail to appearfortrial. Thaves also encouraged her to go intohiding
so she could avoid arrest on a material witness warrant. The State later added charges 

### of firstdegree assault, felonyharassment, tampering with a witness, and twocounts of violation of a court order.67238-0-1/3
Priorto trial, the State informed the court that police had been unable to locate Dawson and moved to admit the recording of her statementto Officer Rankin underthe excited utterances exception to the hearsay rule. See ER 803(a)(2). After a hearing, the trial court admitted the statement as an excited utterance.1 On the first day of trial, the State played Dawson's recorded statementto Officer Rankin for thejury. Bythe time trial resumed afterthe weekend recess, the police had arrested Dawson on a material witness warrant. Dawson testified that Thaves never hurt her and she did not rememberthe events ofJanuary 19, 2011. After Dawson's testimony, the State argued that her recorded statement could also be admitted under the recorded recollection exception to the hearsay rule. See ER 803(a)(5). Inwritten findings offact and conclusions of law, the trial court determined thatthe statementwas admissible as a recorded recollection. Before deliberations, the trial court ruled thatthe recordings admitted as exhibits 

### would go to thejury room but playbackequipmentwould not be provided. During deliberations, thejury requested playbackofthejailtelephone calls, the 911 calls, and Dawson's statement. The trial court broughtthejury into the courtroom for a single 

### playback ofsome of the jail and 911 calls but informed the jury that the recorded statementwould not be replayed.



### 1The court found that admission ofthe statementdid not violate Thaves's right to 

### confrontation underthe forfeiture by wrongdoing doctrine. See State v. Fraser. 170Wn. 

### App. 13, 20-21, 282 P.3d 152 (2012) (wheredefendant's wrongful act is designed to prevent witnessfrom testifying, admission oftestimonial statementby that witness does not violate defendant's right to confrontation despite lack of opportunity to crossexamine). Thaves does not challengethat ruling on appeal.67238-0-1/4
Thejuryfound Thaves guilty of second degree assault, unlawful imprisonment, tampering with a witness, and two counts ofviolation of a court order. The trial court 

### then instructed thejury on the aggravating factor ofan ongoing pattern ofdomestic violence of abuse. RCW 9.94A.535(3)(h)(i). The State presented certified copies of court documents indicating Thaves had been convicted ofthree prior domestic violence 

### crimes againstthree different victims. Thejury returned special verdicts. The trial court imposed exceptional sentences for the assault and unlawful imprisonment and standard range sentences for the remaining convictions. Thaves appeals, challenging his convictions and sentences for assault and unlawful imprisonment. ANALYSIS Thaves first contends that the trial courterred by admitting Dawson's recorded
statement. We review a trial court's admission ofevidence for abuse ofdiscretion. State v. Hamlet. 133 Wn.2d 314, 324, 944 P.2d 1026 (1997). Hearsay is "a statement, 

### otherthan one made by the declarantwhile testifying atthe trial or hearing, offered in evidence to prove the truth ofthe matter asserted." ER 801(c). Hearsay is not 

### admissible unless an exception applies. ER 802; State v. Chapin, 118 Wn.2d 681, 685, 826 P.2d 194 (1992). Here, the trial court admitted the statement under both the 

### excited utterance exception and the recorded recollection exception. ER 803(a)(2), (5). We can affirm a trial court's ruling on the admission ofevidence on any ground 

### supported by the record and the law. State v. Grier, 168 Wn. App. 635, 644, 278 P.3d 225(2012).67238-0-1/5
ER 803(a)(5) provides: Recorded Recollection. A memorandum or record concerning a matter 

### aboutwhich a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or 

### adopted by the witness when the matterwas fresh inthe witness' memory and to reflectthat knowledge correctly. Ifadmitted, the memorandum or record may be read into evidence but may not itselfbe received as an exhibit unless offered by an adverse party. Admission of statements under ER 803(a)(5) is properwhen: 

### (1) the record pertains to a matter aboutwhich the witness once had knowledge; (2) the witness has an insufficient recollection ofthe matterto provide truthful and accurate trial testimony; (3) the record was made or adopted by the witness when the matterwas fresh inthe witness' memory; and (4) the record reflects the witness' prior knowledge accurately. State v. Alvarado. 89 Wn. App. 543, 548, 949 P.2d 831 (1998). 

### Thaves does not argue or demonstrate thatthe statement does not constitute a recorded recollection. Instead, he claims that the statementwas "inadmissible" 

### because the trial court improperly published it to thejury. Br. ofAppellant at 15. In 

### particular, he claims thatthe State should have been allowed only to read the statement into evidence and the statement should not have been received as an exhibit because 

### the State was not an adverse party. Butas the words "[i]fadmitted" indicate, the limitations on the method of publication described inthe last sentence of ER 803(a)(5)
are not relevantto the determination ofadmissibility. Thaves fails to demonstrate any abuse ofdiscretion inthe trial court's decision on the admissibility ofthe statement 

### underER 803(a)(5).2

2Because Dawson's statement was admissible as a recorded recollection, we 

### need notconsiderThaves's challenge to its admission under ER 803(a)(2). -5-67238-0-1/6
Even assuming the trial court erred by allowing the State to play the audio 

### recording ofDawson's statement ratherthan read it into evidence and by allowing the recording to be marked as an exhibit and go to thejury room without playback equipment, Thaves fails to articulate or demonstrate any resulting harm. A nonconstitutional evidentiary error requires reversal only ifthe error, within reasonable probability, materially affected the outcome ofthe trial. State v. Halstien, 122 Wn.2d 

### 109, 127, 857 P.2d 270 (1993). Thejury heard the recorded statement only once, despite its requestfor a replay during deliberations. Dawson testified and thejury repeatedly heard recordings of her 911 calls and her conversations with Thaves on the jail telephone. State witnesses also testified as to several unsolicited statements Dawson made on January 19 regarding the charged crimes. Any error inthe procedure of publishing the recorded statementto thejury was harmless. Thaves next contends that his exceptional sentences must be reversed because the evidence was insufficientto prove the aggravating factor. A trial court may impose


### an exceptional sentence under RCW 9.94A.535(3)(h)(i) where the current offense involved domestic violence and was "part ofan ongoing pattern ofpsychological, 

### physical, or sexual abuse of a victim or multiple victims manifested by multiple incidents
over a prolonged period of time." Inparticular, Thaves asserts that because the documents regarding prior convictions submitted to thejury to support a finding of a pattern ofabuse did not involve Dawson, the State failed to establish the aggravating factorfor the current offenses. Thaves relies on the definition of "victim" inthe Sentencing Reform Act of 

### 1981 providing: "'Victim' means any person who has sustained emotional,
-6-67238-0-1/7 

### psychological, physical, or financial injury to person or property as a direct result ofthe crime charged." RCW 9.94A.030(53). 

### We recently rejected such an argument in State v. Sweat. Wn. App. , 297 P.3d 73 (2013) (to present sufficient evidence to support RCW 9.94A.535(3)(h)(i) aggravating factor, State is not limited by RCW 9.94A.030(53)'s definition of"victim" to 

### only those who suffered injury from the charged crime). "The legislative history .
.. makes abundantly clearthatthe intent ofthe statute was to address the serial domestic 

### violence offenderand consideradditional victims who suffered past abuse bythe offender." Sweat, 297 P.3d at 76. Here, the trial court instructed thejury that its verdict on the second degree assault and unlawful imprisonment established "the existence ofthose facts and 

### circumstances which are the elements ofthe crime[s]." The court instructed thejury to determine whether (1) Thaves and Dawson were "family or household members" and (2) the assault and unlawful imprisonment against Dawson were "part ofan ongoing pattern ofpsychological, physical, or sexual abuse ofmultiple victims manifested by multiple incidents over a prolonged period of time." Based on these instructions, the 

### jury was entitled to considerthe evidence presented by the State attrial on the charged crimes involving Dawson, as well as the additional evidence ofThaves's prior domestic 

### violence convictions. The State presented sufficientevidence forthejury to findthat Dawson and Thaves were living togetherwhen he assaulted her and unlawfully imprisoned her, that he had committed crimes ofdomestic violence againstthree other
women inthe past, and that his actions against Dawson were part of an ongoing pattern ofdomestic violence abuse.67238-0-1/8 

### Thaves also asserts thatthe statutory language ofthe aggravating factor, 

### "pattern ofabuse," isvoid forvagueness.3 Thefederal and state due process vagueness doctrine requires that citizens have fair warning ofproscribed conduct. State v. Chanthaboulv. 164Wn. App. 104, 141,262P.3d 144(2011). But our Supreme Court has held that "the due process considerations that underlie the void-forvagueness doctrine have no application inthe context of sentencing guidelines." State 

### v. Baldwin, 150 Wn.2d 448, 459, 78 P.3d 1005 (2003). Thaves urges this courtto disregard Baldwin, alleging inconsistencies with Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Because we are bound by the decisions of
our state Supreme Court, we decline his invitation. Finally, Thaves contends that his due process rights were violated when thejury considered inadmissible hearsay inthe proceedings to determine the aggravating 

### factor. Inparticular, he claims thatthejury considered certifications for probable cause 

### relating to Thaves's priorconvictions. He is incorrect. The record reveals thatThaves objected to the introduction ofcertifications for probable cause and the prosecutor agreed to remove them from the certified documents to be presented to thejury. Because Thaves fails to demonstrate that any inadmissible material was actually submitted to thejury, he has not established error. 

### In a statementofadditional grounds for review, Thaves contends that he received ineffective assistance ofcounsel when his attorney failed to (1) find or contact 

### 3Thaves also argues for the firsttime on appeal that the juryinstruction on the aggravating factor is void forvagueness. BecauseThaves did not object to the instruction below, we do not address this claim. State v. Releford, 148 Wn. App. 478, 

### 493, 200 P.3d 729 (2009)("[U]nobjected-to jury instructions are not subjectto constitutional vagueness challenges on appeal."). -8-67238-0-1/9
John Woodward, the man whom Dawson testified had choked her some time before the 

### charged crimes and (2)take pictures ofthe crime scene. Because these claims are not supported by credible evidence inthe record, we cannot review them. RAP 10.10(c). Thaves also claims that his crimes occurred within five minutes and should have 

### been treated as a single offense. To constitute the "same criminal conduct" foroffender


### score purposes, crimes must require the same criminal intent, be committed at the
same time and place, and involvethe same victim. RCW 9.94A.589(1)(a). ButThaves 

### did not askthe sentencing court to considerwhether his crimes constituted the same criminalconduct. Because application of the same criminalconductstatute involves both factual determinations and the exercise of discretion, Thaves waived this claim. In


### re Pers. Restraint ofGoodwin, 146 Wn.2d 861, 875, 50 P.3d 618 (2002) (citing State v. 

### Nitsch, 100 Wn. App. 512, 997 P.2d 1000 (2000)). Affirmed.

WE CONCUR: 

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