Filed Washington State Court of Appeals Division Two
April 26, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 47003-9-II
Respondent,
v.
JAMES DILLARD APPLEGATE, UNPUBLISHED OPINION
Appellant.
LEE, J. — A jury found James Dillard Applegate guilty of second degree assault—domestic
violence. He appeals, alleging evidentiary errors. He further alleges the sentencing court erred by
imposing legal financial obligations (LFOs) without inquiring into his ability to pay. We affirm.
FACTS
Applegate and his sister, Debra Applegate, lived together with their mother. One evening
the siblings got into an argument which culminated in a physical altercation. When police arrived,
Applegate approached Officer David Krebs with his hands up and stated, “I did it. Take me in.”
1 Report of Proceedings (RP) at 10. Officer Krebs then went inside the house and observed Debra,1
who was “extremely agitated” and “really emotional.” 1 RP at 11-12. She was pacing and showed
“hystericalness.” 2 RP at 181.
1 We use Debra Applegate’s first name to avoid confusion. No disrespect is intended. No. 47003-9-II
Officer Krebs noticed Debra had a lump on her head, blood on her forehead and mouth,
swelling over her eye, a cut on her chin, and redness and bruising around her neck. Debra told
Officer Krebs that Applegate hit her in the head and face, and then grabbed her neck with both
hands and strangled her until she almost lost consciousness, saw spots, and involuntarily urinated.
Debra eventually calmed down and provided a sworn written statement of the details she
previously told Officer Krebs. A few days later, Officer Matthew Bachelder, a former domestic
violence detective, returned to the Applegate residence to photograph Debra. He noted bruising
and redness around her chin and left eye but did not recall seeing marks around her neck.
The State charged Applegate with second degree assault—domestic violence, by
strangulation or suffocation.
During trial, Debra testified she was intoxicated during the incident and did not remember
what happened. Over a defense objection, Officer Krebs testified to Debra’s statement on the night
of the incident that Applegate hit her in the head and face, and then grabbed her neck with both
hands and strangled her until she almost lost consciousness, saw spots, and involuntarily urinated.
Over a defense objection, the trial court also allowed the State to admit Debra’s written statement,
concluding that the affidavit was properly admissible as a Smith2 affidavit.
The trial court also admitted, over a defense objection, the testimony of Officer Bachelder,
who testified that based on his training and experience, signs of strangulation included breathing
issues and involuntary urination. The trial court further admitted several photographs that were
taken on the night in question that showed redness and bruising around Debra’s neck.
2 State v. Smith, 97 Wn.2d 856, 651 P.2d 207 (1982).
2 No. 47003-9-II
Applegate testified in his defense, claiming Debra was the aggressor and he was unaware
how she received her injuries. Applegate, however, admitted to telling the police to “take me to
jail.” 3 RP at 348.
A jury found Applegate guilty as charged. The sentencing court sentenced Applegate to
135 days and imposed $2,650 in LFOs without objection. Applegate appeals.
ANALYSIS
A. EVIDENTIARY RULINGS
Applegate contends the trial court erred by admitting Debra’s oral and written statements
and allowing Officer Bachelder to testify as an expert. We disagree.
We review a trial court’s evidentiary rulings for an abuse of discretion. State v. Finch, 137
Wn.2d 792, 810, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999). A court abuses its discretion
when its evidentiary ruling is “manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons.” State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004) (quoting State
ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). We may uphold a trial court’s
evidentiary ruling on the grounds the trial court used or on other proper grounds the record
supports. State v. Powell, 126 Wn.2d 244, 259, 893 P.2d 615 (1995). We will reverse an erroneous
evidentiary ruling only if there is a reasonable probability that the outcome of the trial would have
been materially affected had the error not occurred. State v. Goggin, 185 Wn. App. 59, 69, 339
P.3d 983 (2014), review denied, 182 Wn.2d 1027 (2015).
3 No. 47003-9-II
1. Admission of Oral Statement
Applegate first contends the trial court erred by allowing Officer Krebs’ hearsay testimony
of Debra’s statements on the night of the incident. This challenge fails.
Hearsay is “a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted” in the statement. ER
801(c). Hearsay statements are inadmissible unless they fall within one of the exceptions in the
Rules of Evidence. ER 802. One such exception is for the declarant’s “excited utterances,”
defined as “statement[s] relating to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition.” ER 803(a)(2). To qualify as an
exited utterance, a statement must meet three requirements: (1) a startling or exciting event must
have occurred, (2) the declarant’s statement must have been made while he or she was under the
stress of the startling or exciting event, and (3) the statement must be related to the startling or
exciting event. State v. Ohlson, 162 Wn.2d 1, 8, 168 P.3d 1273 (2007).
Applegate argues the second requirement was not satisfied because there was no showing
Debra was still under the stress of a startling event when speaking with Officer Krebs. Officer
Krebs testified Debra appeared “extremely agitated” and “really emotional.” 1 RP at 11-12. Debra
was pacing and showed “hystericalness.” 2 RP at 181. While Officer Krebs testified she
eventually calmed down, she remained agitated and emotional.
Applegate also argues the second requirement was not satisfied because Debra’s responses
were to Officer Krebs’ questions versus blurted out statements. In State v. Chapin, 118 Wn.2d
681, 690, 826 P.2d 194 (1992), our Supreme Court noted that when a statement is made in answer
to a question it may raise doubts as to whether the statement is in response to a startling event, but
4 No. 47003-9-II
“[t]he fact that a statement is made in response to a question will not by itself require the statement
be excluded.” Based on Debra’s actions throughout Officer Krebs’ contact with her, she was
clearly under the stress of an exciting event that was not minimized by his questioning. Thus,
because the trial court had tenable grounds to allow the hearsay testimony under the excited
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Filed Washington State Court of Appeals Division Two
April 26, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 47003-9-II
Respondent,
v.
JAMES DILLARD APPLEGATE, UNPUBLISHED OPINION
Appellant.
LEE, J. — A jury found James Dillard Applegate guilty of second degree assault—domestic
violence. He appeals, alleging evidentiary errors. He further alleges the sentencing court erred by
imposing legal financial obligations (LFOs) without inquiring into his ability to pay. We affirm.
FACTS
Applegate and his sister, Debra Applegate, lived together with their mother. One evening
the siblings got into an argument which culminated in a physical altercation. When police arrived,
Applegate approached Officer David Krebs with his hands up and stated, “I did it. Take me in.”
1 Report of Proceedings (RP) at 10. Officer Krebs then went inside the house and observed Debra,1
who was “extremely agitated” and “really emotional.” 1 RP at 11-12. She was pacing and showed
“hystericalness.” 2 RP at 181.
1 We use Debra Applegate’s first name to avoid confusion. No disrespect is intended. No. 47003-9-II
Officer Krebs noticed Debra had a lump on her head, blood on her forehead and mouth,
swelling over her eye, a cut on her chin, and redness and bruising around her neck. Debra told
Officer Krebs that Applegate hit her in the head and face, and then grabbed her neck with both
hands and strangled her until she almost lost consciousness, saw spots, and involuntarily urinated.
Debra eventually calmed down and provided a sworn written statement of the details she
previously told Officer Krebs. A few days later, Officer Matthew Bachelder, a former domestic
violence detective, returned to the Applegate residence to photograph Debra. He noted bruising
and redness around her chin and left eye but did not recall seeing marks around her neck.
The State charged Applegate with second degree assault—domestic violence, by
strangulation or suffocation.
During trial, Debra testified she was intoxicated during the incident and did not remember
what happened. Over a defense objection, Officer Krebs testified to Debra’s statement on the night
of the incident that Applegate hit her in the head and face, and then grabbed her neck with both
hands and strangled her until she almost lost consciousness, saw spots, and involuntarily urinated.
Over a defense objection, the trial court also allowed the State to admit Debra’s written statement,
concluding that the affidavit was properly admissible as a Smith2 affidavit.
The trial court also admitted, over a defense objection, the testimony of Officer Bachelder,
who testified that based on his training and experience, signs of strangulation included breathing
issues and involuntary urination. The trial court further admitted several photographs that were
taken on the night in question that showed redness and bruising around Debra’s neck.
2 State v. Smith, 97 Wn.2d 856, 651 P.2d 207 (1982).
2 No. 47003-9-II
Applegate testified in his defense, claiming Debra was the aggressor and he was unaware
how she received her injuries. Applegate, however, admitted to telling the police to “take me to
jail.” 3 RP at 348.
A jury found Applegate guilty as charged. The sentencing court sentenced Applegate to
135 days and imposed $2,650 in LFOs without objection. Applegate appeals.
ANALYSIS
A. EVIDENTIARY RULINGS
Applegate contends the trial court erred by admitting Debra’s oral and written statements
and allowing Officer Bachelder to testify as an expert. We disagree.
We review a trial court’s evidentiary rulings for an abuse of discretion. State v. Finch, 137
Wn.2d 792, 810, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999). A court abuses its discretion
when its evidentiary ruling is “manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons.” State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004) (quoting State
ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). We may uphold a trial court’s
evidentiary ruling on the grounds the trial court used or on other proper grounds the record
supports. State v. Powell, 126 Wn.2d 244, 259, 893 P.2d 615 (1995). We will reverse an erroneous
evidentiary ruling only if there is a reasonable probability that the outcome of the trial would have
been materially affected had the error not occurred. State v. Goggin, 185 Wn. App. 59, 69, 339
P.3d 983 (2014), review denied, 182 Wn.2d 1027 (2015).
3 No. 47003-9-II
1. Admission of Oral Statement
Applegate first contends the trial court erred by allowing Officer Krebs’ hearsay testimony
of Debra’s statements on the night of the incident. This challenge fails.
Hearsay is “a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted” in the statement. ER
801(c). Hearsay statements are inadmissible unless they fall within one of the exceptions in the
Rules of Evidence. ER 802. One such exception is for the declarant’s “excited utterances,”
defined as “statement[s] relating to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition.” ER 803(a)(2). To qualify as an
exited utterance, a statement must meet three requirements: (1) a startling or exciting event must
have occurred, (2) the declarant’s statement must have been made while he or she was under the
stress of the startling or exciting event, and (3) the statement must be related to the startling or
exciting event. State v. Ohlson, 162 Wn.2d 1, 8, 168 P.3d 1273 (2007).
Applegate argues the second requirement was not satisfied because there was no showing
Debra was still under the stress of a startling event when speaking with Officer Krebs. Officer
Krebs testified Debra appeared “extremely agitated” and “really emotional.” 1 RP at 11-12. Debra
was pacing and showed “hystericalness.” 2 RP at 181. While Officer Krebs testified she
eventually calmed down, she remained agitated and emotional.
Applegate also argues the second requirement was not satisfied because Debra’s responses
were to Officer Krebs’ questions versus blurted out statements. In State v. Chapin, 118 Wn.2d
681, 690, 826 P.2d 194 (1992), our Supreme Court noted that when a statement is made in answer
to a question it may raise doubts as to whether the statement is in response to a startling event, but
4 No. 47003-9-II
“[t]he fact that a statement is made in response to a question will not by itself require the statement
be excluded.” Based on Debra’s actions throughout Officer Krebs’ contact with her, she was
clearly under the stress of an exciting event that was not minimized by his questioning. Thus,
because the trial court had tenable grounds to allow the hearsay testimony under the excited
utterance exception, it did not abuse its discretion.
2. Admission of Written Statement
Applegate next argues the trial court erred by admitting Debra’s prior written statement.
He argues that the reliability test articulated in State v. Smith, 97 Wn.2d 856, 863, 651 P.2d 207
(1982), is invalid after the United States Supreme Court’s opinion in Crawford v. Washington, 541
U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
Even if the trial court erred in admitting Debra’s prior written statement, it will not impact
Applegate’s conviction because any error would be harmless. An erroneous admission of evidence
does not amount to reversible error unless the court determines within reasonable probability that
the outcome of the trial would have been materially affected had the error not occurred. Goggin,
185 Wn. App. at 69. Here, Applegate admitted to wrongdoing when officers first arrived; several
admitted photographs show Debra’s injuries, including redness and bruising around her neck; and
Officer Krebs properly testified to Debra’s oral statements alleging Applegate tried to strangle her.
Given the evidence, there is no reasonable probability that the outcome of the trial would have
been materially affected had the statement not been admitted. Thus, Applegate’s argument is
unpersuasive.3
3 Applegate further argues the written statement would not be admissible as a recorded recollection under ER 803(a)(5) because Debra had a “complete lack of recollection.” Br. of Appellant at 16
5 No. 47003-9-II
3. Officer Bachelder’s Testimony
Applegate next argues the trial court erred by allowing Officer Bachelder to testify about
the signs of strangulation. This challenge also fails.
Expert testimony is admissible when the expert’s “specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue.” ER 702. A witness can be
“qualified as an expert by knowledge, skill, experience, training, or education, [and] may testify
thereto in the form of an opinion or otherwise.” Id. Training and experience gained as a police
officer can qualify that person as an expert in certain areas. State v. Sanders, 66 Wn. App. 380,
386, 832 P.2d 1326 (1992). Moreover, under ER 703 and 705, expert opinions can be admitted
without foundation other than “testimony establishing the expert’s qualifications.” Id. (quoting
5A KARL TEGLAND, WASHINGTON PRACTICE, EVIDENCE § 311, at 482 (3d ed. 1989)).
Here, Officer Bachelder testified that before he was a patrol officer he was a domestic
violence detective and went through assault training, which included recognizing the signs of
strangulation. He further testified he had investigated “30 or more” strangulation cases. 2 RP at
235. He then testified that based on his training and experience, signs of strangulation included
breathing issues and involuntary urination.
Given Officer Bachelder’s specific training and experience, his specialized knowledge
qualified him to testify about the signs of strangulation. Because the trial court had tenable grounds
to admit his testimony regarding signs of strangulation, the trial court did not err.
n.11. This argument is improperly raised in a footnote in Applegate’s opening brief without an assignment of error as required in RAP 10.3(a)(4). Given the improper raising of this issue and our conclusion that any error would be harmless, we decline to reach this issue.
6 No. 47003-9-II
B. LFOs
The final issue is whether the sentencing court erred by failing to make an individualized
determination of Applegate’s ability to pay before imposing LFOs. The State argues this issue
was not preserved for appeal. The State is correct. Applegate did not challenge the trial court’s
imposition of LFOs at his sentencing, so he may not do so on appeal. State v. Blazina, 174 Wn.
App. 906, 911, 301 P.3d 492 (2013), remanded, 182 Wn.2d 827, 344 P.3d 680 (2015). Our
decision in Blazina, issued before Applegate’s November 7, 2014 sentencing, provided notice that
the failure to object to LFOs during sentencing potentially waives a related claim of error on
appeal. As our Supreme Court noted, an appellate court may use its discretion to reach unpreserved
claims of error. State v. Blazina, 182 Wn.2d 827, 830, 344 P.3d 680 (2015). We decline to exercise
such discretion here.
C. APPELLATE COSTS
Applegate objects to awarding appellate costs to the State in light of State v. Sinclair, 192
Wn. App. 380, 367 P.3d 612 (2016), arguing he lacks the ability to pay. We ordered the State to
respond, but it did not.
The trial court entered an order of indigency for this appeal on January 5, 2015. We
presume a party remains indigent “throughout the review” unless the trial court finds otherwise.
RAP 15.2(f). RCW 10.73.160(1) vests the appellate court with discretion to award appellate costs.
Under RAP 14.2, that discretion may be exercised in a decision terminating review. We exercise
our discretion and hold that an award of appellate costs to the State is not appropriate.
We affirm.
7 No. 47003-9-II
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.
Lee, J.
We concur:
Worswick, P.J.
Melnick, J.