IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 87552-3-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
DAREL DASHAE CAIN,
Appellant.
DÍAZ, J. — A jury convicted Darel Dashae Cain of felony violation of a no-
contact order (NCO), intended to protect Christina Marie Taylor. He now challenges multiple evidentiary rulings and the court’s denial of his request to bifurcate the trial. Finding no prejudicial error, we affirm.
I. BACKGROUND
In June 2023, a superior court entered a domestic violence NCO prohibiting Cain from contacting Taylor for five years. Cain and Taylor have one child together. A court had already twice convicted Cain of violating an NCO protecting Taylor.
In March 2024, Taylor called 911 and reported that Cain was at her residence and that he was intoxicated. She also said that he had punched her in
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the head, jumped on her, and poured alcohol all over her. Police arrived and arrested Cain. Cain’s speech was slurred and he was having trouble walking. Police chose to have him leave the scene by ambulance.
The State charged Cain with violation of an NCO. Under RCW 7.105.450(5), the State brought the charge as a felony predicated on Cain’s previous convictions for the same charge.
At trial, the State played the recording of Taylor’s 911 call. The State also offered into evidence redacted versions of the judgement and sentences from Cain’s prior convictions, so that the jury could determine whether Cain had committed the predicate convictions. Cain’s defense was that he was too intoxicated to willfully violate the NCO. The jury returned a guilty verdict. Cain timely appeals.
II. ANALYSIS
A. Taylor’s 911 Call Before the trial, Cain moved under ER 403 and 404(b) to redact from audio recording of the 911 call any mention of “either the assault or Mr. Cain pouring alcohol on Ms. Taylor.” The court admitted the call without the fully requested redactions, finding that those portions of the call had “some probative value” and that they were not “unfairly prejudicial.” Cain now reasserts that the court violated ER 403 and ER 404(b) when it admitted the unredacted call. We hold that the court did not abuse its discretion in refusing to redact the call, addressing each rule in turn.
In general, “All relevant evidence is admissible.” ER 402. Evidence is
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relevant “if it makes the existence of a fact of consequence more or less probable to be true than without the evidence.” State v. Arredondo, 188 Wn.2d 244, 259, 394 P.3d 348 (2017); ER 401. ER 403 provides that, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”
We review any evidentiary ruling for abuse of discretion. State v. Luvene, 127 Wn.2d 690, 706-07, 903 P.2d 960 (1995). “A reviewing court may not find abuse of discretion simply because it would have decided the case differently—it must be convinced that ‘no reasonable person would take the view adopted by the trial court.’” State v. Salgado-Mendoza, 189 Wn.2d 420, 427, 403 P.3d 45 (2017) (internal quotation marks omitted) (quoting State v. Perez-Cervantes, 141 Wn.2d 468, 475, 6 P.3d 1160 (2000)).
Cain claims that Taylor’s “graphic 911 allegations of assault and threats of assault” had low probative value and that the court abused its discretion under ER 403 when it declined to redact the recording. He argues that because Cain’s presence alone violated the NCO, any additional evidence of Cain’s conduct has low probative value. We disagree.
The State has the burden to prove that Cain willfully contacted Taylor in violation of the NCO. State v. Briggs, 18 Wn. App. 2d 544, 550-52, 492 P.3d 218 (2021) (holding that a “person does not knowingly violate an NCO if they accidentally or inadvertently contact the protected party . . . contact must be willful to sustain a conviction.”) (citation omitted). The State sought to introduce the recording as proof of Cain’s willfulness. Taylor’s call describing that Cain punched
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her and poured alcohol on her is evidence that Cain’s presence at Taylor’s residence was not accidental or inadvertent. See, e.g., State v. Baker, 136 Wn. App. 878, 883, 151 P.3d 237 (2007) (holding that the fact that the defendant “flipped off” an officer and laughed went to defendant’s intent to strike the officers with his vehicle). The assault is evidence that Cain knew where he was, knew who Taylor was, and remained at her residence, at least in part, to assault her. Cain fails to establish that the court’s finding that the evidence has some probative value is one “no reasonable person” would take. Salgado-Mendoza, 189 Wn.2d at 427.
The next question is whether the probative value “is substantially outweighed by the danger of unfair prejudice.” ER 403. Evidence causes unfair prejudice, in pertinent part, when it is “more likely to arouse an emotional response than a rational decision by the jury.” City of Auburn v. Hedlund, 165 Wn.2d 645, 654, 201 P.3d 315 (2009) (internal quotation marks omitted) (quoting State v. Cronin, 142 Wn.2d 568, 584, 14 P.3d 752 (2000)). And “the burden of demonstrating unfair prejudice is on the party seeking to exclude the evidence.” State v. Burkins, 94 Wn. App. 677, 692, 973 P.2d 15 (1999).
We hold that Cain has not carried his burden to show unfair prejudice. The court acknowledged that Cain’s conduct was “unpleasant . . . but unpleasant is not the same thing as prejudice.” We agree that, although Taylor’s descriptions of Cain’s behavior was likely to be somewhat prejudicial to his defense, prejudice alone does not trigger exclusion under ER 403. Carson v. Fine, 123 Wn.2d 206, 224, 867 P.2d 610 (1994) (holding that “nearly all evidence will prejudice one side or the other”). Cain has not shown that the portions of the recording at issue
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substantially outweigh their probative value to Cain’s willfulness.
Cain’s central argument was that he was so intoxicated that there was reasonable doubt about whether the violation was willful. “The ability of the danger of unfair prejudice to substantially outweigh the probative force of evidence is ‘quite slim’ where the evidence is undeniably probative of a central issue in the case.” Carson, 123 Wn.2d at 224 (quoting United States v. 0.161 Acres of Land, 837 F.2d 1036, 1042 (11th Cir. 1988)). Thus, under the “great deal of deference” afforded to such decisions, we conclude the trial court did not abuse its discretion in applying ER 403 to this evidence. Luvene, 127 Wn.2d at 707.
As to ER 404(b), Cain argues that any argument that the assault shows willfulness “collapses into classic propensity reasoning” in violation of ER 404(b). Under ER 404(b), it is impermissible to admit evidence “of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith.” But punching Taylor and pouring alcohol on her also violated the provision which prohibits direct contact. Cain’s behavior was not another crime or wrongful act. It was the charged crime itself. The evidence is therefore not circumscribed by ER 404(b).
Even if Cain’s assaultive acts were a separate crime, evidence of other crimes may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” ER 404(b). In appropriate cases, evidence of prior crimes may be relevant to the issue of intent. State v. Saltarelli, 98 Wn.2d 358, 365, 655 P.2d 697 (1982). Such was the case here.
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The State played the recording of the 911 call during closing remarks and argued that the jury should conclude that “Mr. Cain is not a man who is unable to formulate intent.” We hold that the 911 call was admitted and used for the legitimate purpose of proving willfulness. Thus, Cain has not shown that the court violated ER 404(b) when it admitted the unredacted 911 call. B. Redactions to Exhibits Cain next makes several arguments claiming that some exhibits should not have been admitted at all or at least redacted before being submitted to the jury. We address each argument in turn.
As to the former, Cain argues that the court erred when it allowed the jury to see “two prior unredacted convictions.” (Emphasis added.) In truth, the court allowed the jury to see three prior convictions, each redacted nearly entirely as Cain proposed and as agreed to by the State. Two were for violating an NCO protecting Taylor, the alleged victim in this case, and the third was for violating an NCO protecting Terika Cain. Because Cain at a minimum did not object to the sheer admission of the prior convictions, any argument that their admission was an error is waived. RAP 2.5(a).
As to the latter—redactions—Cain argues that the court erred when it allowed the State to introduce certain sections of the NCO itself.
Before the trial, the State agreed to redact the words, “post-conviction” and the finding that Cain “represents a credible threat to the physical safety of the protected person.” The court granted, over the State’s objection, Cain’s motion to redact reference to a firearm restriction. Cain also moved to redact (1) the finding
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that Cain and Taylor were “intimate partners” in those NCOs and (2) the words “domestic violence” from the title of the NCOs. The court declined to make the redactions.
As to the the intimate partner finding in the NCO, we hold that the court’s reasoning—that the NCO was relevant for the jury to determine whether Cain and Taylor are intimate partners—was flawed but that the error was harmless.
Cain correctly argued that the jury should not rely on a previous court finding that there is an intimate partner relationship or a “domestic violence relationship.” In response, the State claimed that it needed to prove an intimate relationship and that the NCO language had high probative value for the jury for that purpose. The court agreed with the State that the language was “highly probative of the elements of the charges” and denied the redactions. The court never considered whether this evidence was properly admissible.
Although, as the court noted, the NCO is a certified public document, a court finding in the NCO is nonetheless hearsay if introduced to prove the truth of the matter asserted. In re Det. of Pouncy, 168 Wn.2d 382, 393-94, 229 P.3d 678 (2010). The court therefore erred when it allowed the State to introduce the intimate partner finding as substantive proof of the nature of their relationship. 1 Still, an “[e]videntiary error is grounds for reversal only if it results in prejudice.” State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001). The error here was harmless because similar evidence was already before the jury.
1 Because we hold that the intimate partner finding was inadmissible hearsay, we
do not address Cain’s argument that the finding violated ER 403 or 404(b) or was an improper comment on the evidence.
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In the recording of the 911 call, Taylor stated that Cain was her daughter’s dad. Also, Cain did not request to redact the NCO language deferring child visitation issues to family court. Cain never disputed, either at trial or on appeal, that he and Taylor had an intimate relationship and have a child together. Thus, there is no reasonable probability, had the error not occurred, the “outcome of the trial would have been materially affected.” Smith, 106 Wn.2d at 780. Therefore, this error is harmless.
As to the term “domestic violence,” Cain argues that declining to redact the term violated ER 403 and 404(b) because Cain would be prejudiced by a prior court finding of violence. Redacting the title would have been within the court’s discretion. State v. Taylor, 193 Wn.2d 691, 702, 444 P.3d 1194 (2019). And the State agreed to redact the words “domestic violence” from the exhibits of Cain’s past violations. The State’s objection, and court’s denial, of the same redaction from the NCO itself are therefore inconsistent with the agreed redactions.
Assuming without deciding that it was error to maintain the term “domestic violence” in the title of the order in this context, the only remaining question is “whether the admission of the evidence is of minor significance in reference to the evidence as a whole.” Neal, 144 Wn.2d at 611. We hold that, even if it was error to not redact that portion of the title, it is not “‘within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.’” Id. (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).
For similar reasons as the “intimate partner finding,” Cain has not made such a showing. Here, the remainder of the title of the NCO was without objection
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before the jury, his presence in Taylor’s home was uncontested, and his primary defense was that he was too intoxicated to willfully violate the order, which does not depend on whether he was in a domestic relationship with Taylor. Cain has not shown undue prejudice and this assignment of error is, thus, unavailing. C. Bifurcation Finally, Cain argues that the court erred when it declined to bifurcate the jury’s determination of four of the five elements of the crime from the element which requires a jury to find the underlying predicate convictions. We find no abuse of discretion.
The jury instructions presented the elements of the crime as follows:
(1) That on or about March 21, 2024, 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 willfully violated the terms of this order;
(4) That at the time of the violation, the defendant had at least two previous convictions for violating the provisions of a court order; and (5) That the defendant’s act occurred in the State of Washington.
Cain moved for a bifurcated trial in which, during the first portion, the State would “present evidence related to all of the elements except” for the fourth element. If the jury found the other elements were met, he proposed, then in a second portion of the trial, the State could introduce the predicate convictions through a witness’s testimony, for the jury to determine whether the fourth element was met. He argued that this would prevent the jury from convicting based on propensity reasoning due to the predicate convictions.
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The court found that a bifurcated trial would be impractical and denied the motion. The court instead instructed the jury that the predicate convictions “may be considered only for the purpose of determining whether the defendant had at least two prior convictions for Violation of a Court Order. You may not consider it for any other purpose.”
Trial courts have wide discretion to bifurcate a trial to prevent undue prejudice. State v. Roswell, 165 Wn.2d 186, 198, 196 P.3d 705 (2008). In State v. Oster, 147 Wn.2d 141, 147, 52 P.3d 26 (2002), our Supreme Court affirmed a court’s decision to bifurcate jury instructions for the element of prior convictions. They held that “[i]nstructional bifurcation with respect to criminal history has an important benefit to the accused: it constrains the prejudicial effect of prior convictions upon the jury while clearly maintaining the State’s burden to prove each element beyond a reasonable doubt.” Id.
Our Supreme Court later clarified that Oster did not “hold that the defendant had a right to bifurcated jury instructions.” Roswell, 165 Wn.2d at 197. Trial courts have discretion to “reduce unnecessary prejudice where practical.” Id. at 198 (emphasis added).
In this case, Cain did not propose bifurcated instructions, but a bifurcated trial that would require the State to call a witness and present the exhibits after the “first” jury verdict. Cain relies on Oster to argue that the court abused its discretion, but plainly nothing in Oster, particularly as clarified by Roswell, requires a court to give bifurcated jury instructions, let alone order a bifurcated trial. Roswell, 165 Wn.2d at 197. Cain does not identify any authority in which a court held a
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bifurcated trial as Cain requested in his motion. Furthermore, Cain does not point to any case in which a court’s decision not to bifurcate was reversed. 2 Cain is correct that the admission of evidence of previous convictions have a high risk of undue prejudice. State v. Gunderson, 181 Wn.2d 916, 925, 337 P.3d 1090 (2014). But our Supreme Court held that “[a]ny prejudice created by evidence of the prior conviction may be countered with a limiting instruction from the trial court.” Roswell, 165 Wn.2d at 198. The court offered such a limiting instruction in this case. We presume that the jury follows the trial court's instructions. State v. Emery, 174 Wn.2d 741, 754, 278 P.3d 653 (2012).
Although we may be sympathetic to the underlying argument, and equally desire that a jury not convict anyone on propensity grounds, because we review decisions on bifurcation for abuse of discretion, we affirm even when “reasonable persons could take differing views.” State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). The court’s finding that a bifurcated trial would be impractical is not a one that “no reasonable person” would conclude. Id.
The court therefore did not abuse its discretion when it denied Cain’s request to bifurcate the trial. 3
2 Cain also cites to Erlinger v. United States, 602 U.S. 821, 847-48, 144 S. Ct.
1840, 219 L. Ed. 2d 451 (2024), in which the United States Supreme Court mentioned bifurcation. Bifurcation was not a central issue in the case, and the Supreme Court mentioned it in passing as an example of a judicial procedure which may be used to protect a defendant’s rights. Id. The Supreme Court did not limit a court’s discretion to bifurcate or hold that bifurcation is a right. 3 Cain also argues based on his foregoing claims that cumulative error violated his
right to a fair trial. It is true that an accumulation of errors that do not individually require reversal may nevertheless deny a defendant a fair trial. State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). But the doctrine does not apply “where the errors are few and have little or no effect on the outcome of the trial.” State v.
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III. CONCLUSION
We affirm the trial court’s order.
WE CONCUR:
Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). We see no effect on the outcome of the trial from any error which may have occurred.