State Of Washington v. Jesse Kottenbrock

• Court: Court of Appeals of Washington
• Decided: April 20, 2020
• Docket: 79009-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 79009-9-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION JESSE JAMES KOTTENBROCK,

Appellant.

MANN, C.J. — Jesse Kottenbrock appeals his conviction for assault in the second

degree with a deadly weapon, arguing that the trial court violated his constitutional right

to present a defense by excluding evidence offered to support his self-defense claim.

Kottenbrock also argues for the first time on appeal that the trial court abused its

discretion in imposing a discretionary legal obligation (LFO). We hold that the trial court

properly excluded the evidence in question without infringing on Kottenbrock’s right to

present a defense. We decline to reach the LFO challenge. Accordingly, we affirm.

I.

Jesse Kottenbrock dated Amber Sunderland. Sunderland used to date Kent

Schroeder. Kottenbrock and Schroeder did not get along.

On the evening of January 15, 2018, Kottenbrock drove to Cody Greening’s

house, where Sunderland was visiting. Greening was friends with Sunderland, but he

Citations and pin cites are based on the Westlaw online version of the cited material. No. 79009-9-I/2

did not like Kottenbrock or Schroeder, and told both men that they were not welcome at

his house.

When Kottenbrock arrived at Greening’s house, Schroeder was parked outside.

Schroeder testified that he had dropped off Sunderland at Greening’s house and was

waiting outside to drive her home. Kottenbrock testified that Sunderland had called and

asked him to come pick her up. When Kottenbrock pulled up and honked his horn,

Schroeder exited his car, approached Kottenbrock’s car, and told Kottenbrock to leave

Sunderland alone.

Schroeder testified that when Kottenbrock exited his vehicle, he “immediately

starting swinging and attacking me.” Schroeder said he dodged Kottenbrock’s first

punch from the right while stepping backwards and trying to put his cell phone in his

pocket. Kottenbrock’s left swing caught Schroeder in the chest, “but it didn’t feel like a

punch.” Schroeder then noticed that Kottenbrock had a knife. When Kottenbrock’s left

hand came at Schroeder’s stomach, Schroeder moved his right hand to block it, and

was stabbed in the hand. When Sunderland and Greening came out of Greening’s

house, Schroeder yelled “I’ve been stabbed by Jesse.” Sunderland got into

Kottenbrock’s car and asked Schroeder to leave. Schroeder got into his car, called 911,

and moved his car to block the entrance to the cul-de-sac. Sunderland got out of

Kottenbrock’s car, told Schroeder to move his car, and swatted at him when he refused.

Schroeder moved his car, and Schroeder remained on the scene to speak with police

and to receive treatment for his wounds.

Police stopped Kottenbrock’s car about 30 blocks from Greening’s house.

Kottenbrock denied any wrongdoing. Police observed blood on the rear bumper of

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Kottenbrock’s car. Kottenbrock denied cutting Schroeder and asserted that Schroeder

“would cut himself and say that [I] did it.” Although Kottenbrock asserted that the blood

was “for damn sure” not Schroeder’s, the blood was later identified as Schroeder’s.

Schroeder’s blood was also found on a knife in Kottenbrock’s car.

The State charged Kottenbrock with one count of assault in the second degree

with a deadly weapon. At trial, Kottenbrock asserted that he feared Schroeder and

acted in self-defense. He testified that when he exited his car and heard rapid footsteps

approaching, he believed he needed to protect himself and Sunderland. When he saw

Schroeder’s fist coming at him, he pulled a knife out of his pocket as an “involuntary

reaction.” Kottenbrock started dodging and blocking Schroeder’s swings, but Schroeder

continued his “relentless” attack. He thought Schroeder would not stop unless he

attacked back, so Kottenbrock swung his knife at Schroeder. He testified that he pulled

away as soon as he felt contact, because he “wasn’t trying to fatally wound or kill him.”

When asked why he initially told police he did not stab Schroeder, Kottenbrock testified

that he was in “shock” and “couldn’t think straight.”

In support of his self-defense claim, Kottenbrock testified at trial that Schroeder

had jealously stalked, harassed, and threatened him and Sunderland for five years,

beginning when they started dating. He said Schroeder cyberbullied them, repeatedly

stalked and harassed them in public, popped his car tires with a knife, and threw rocks

at his windows while he was sleeping. Kottenbrock asserted that Schroeder’s actions

caused him severe anxiety, impacted his everyday activities, and made him fear for his

life.

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Kottenbrock also testified that he had called the police about Schroeder twice

during the days leading up to the January 15 altercation. In the first incident, Schroeder

confronted Kottenbrock and Sunderland in a grocery store parking lot, followed them

home in his car, and continued escalating the confrontation until Kottenbrock called

police. In the second incident, he and Sunderland were sleeping in his car when they

heard a “huge crash.” Kottenbrock saw Schroeder jump into his car and drive away.

Upon finding “a huge boulder” next to his car, Kottenbrock called the police. The

responding officer testified that Kottenbrock had called 911 to report that Schroeder had

thrown rocks at his vehicle and that she advised him to seek a protection order if he felt

unsafe.

To corroborate this testimony, Kottenbrock sought to introduce the police

computer-aided dispatch (CAD) logs regarding these two incidents. He asserted that

the logs showed he acted on his fear by calling police when he felt threatened by

Schroeder. The court ruled that the probative value of the CAD logs was substantially

outweighed by the danger of confusing the jury and presenting needlessly cumulative

evidence. In so ruling, the court noted that the CAD logs contained Kottenbrock’s own

hearsay as to incidents that he was permitted to testify to.

Kottenbrock further testified that he and Sunderland petitioned the court for

protection orders against Schroeder a few days prior to the January 15 incident.

Sunderland’s petition was granted, but Kottenbrock was arrested on the day before his

scheduled hearing and his petition was not granted. He specified that his petition

alleged that Schroeder had repeatedly threatened to beat him up or kill him. He further

testified that he was aware of incidents Sunderland had raised in her petitions. To

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further demonstrate the basis of his fear of Schroeder, Kottenbrock sought to introduce

his and Sunderland’s petitions for protection orders and the resulting orders. The court

excluded this evidence because “it’s simply his own out-of-court statement as to exactly

what it is he’s already going to testify to” and because its probative value was

substantially outweighed by the needless presentation of cumulative evidence. The

court also excluded Kottenbrock’s protection order petition denial.

The trial court gave the jury a self-defense instruction. The jury rejected

Kottenbrock’s self-defense claim and convicted him of assault in the second degree with

a deadly weapon. However, the court granted Kottenbrock’s request for an exceptional

sentence below the standard range, finding that “[t]he criminality of Mr. Kottenbrock’s

behavior, while not excused, was mitigated by Mr. Schroeder[’s] actions” and that

Schroeder was “to a significant degree, an initiator, willing participant, aggressor or

provoker in the incident.” The court sentenced Kottenbrock to a total of 24 months

confinement for the assault and deadly weapon enhancement. Kottenbrock appeals.

II.

Kottenbrock asserts that the trial court foreclosed his right to present a defense

by excluding multiple pieces of evidence offered to support his self-defense claim. This

court generally reviews a trial court’s evidentiary rulings for abuse of discretion. State v.

Duarte Vela, 200 Wn. App. 306, 317, 402 P.3d 281 (2017). But we review a claim of a

denial of the Sixth Amendment right to present a defense de novo. State v. Jones, 168

Wn.2d 713, 719, 230 P.3d 576 (2010); State v. Lizarraga, 191 Wn. App. 530, 551, 364

P.3d 810 (2015).

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The right to defend oneself against accusations by the State is guaranteed by

both the United States and the Washington Constitutions. U.S. Const. amend. VI;

Wash. Const. art. 1. “The right of an accused in a criminal trial to due process is, in

essence, the right to a fair opportunity to defend against the State’s accusations.”

Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).

“[I]n plain terms the right to present a defense [is] the right to present the defendant’s

version of the facts as well as the prosecution’s to the jury so it may decide where the

truth lies.” Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988)

(quoting Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019

(1967)).

“In considering a claim of self-defense, the jury must take into account all of the

facts and circumstances known to the defendant.” State v. Burnam, 4 Wn. App. 2d 368,

376, 421 P.3d 977 (2018). Because the “‘vital question is the reasonableness of the

defendant’s apprehension of danger,’” the jury must stand “‘as nearly as practicable in

the shoes of [the] defendant, and from this point of view determine the character of the

act.’” Duarte Vela, 200 Wn. App. at 319 (quoting State v. Wanrow, 88 Wn.2d 221, 235,

559 P.2d 548 (1977)).

However, a defendant “does not have an unfettered right to offer [evidence] that

is . . . inadmissible under standard rules of evidence.” Taylor, 484 U.S. at 410. There is

no constitutional right to present irrelevant evidence. Jones, 168 Wn.2d at 720.

“Evidence is relevant if it has any tendency to make any fact that is of consequence to

the case more or less likely than without the evidence.” State v. Mee Hui Kim, 134 Wn.

App. 27, 41, 139 P.2d 354 (2006). “[I]f relevant, the burden is on the State to show the

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evidence is so prejudicial as to disrupt the fairness of the fact-finding process at trial.”

State v. Darden, 145 Wn.2d 612, 622, 41 P.3d 1189 (2002). “The State’s interest in

excluding prejudicial evidence must be balanced against the defendant’s need for the

information sought, and only if the State’s interest outweighs the defendant’s need can

otherwise relevant information be withheld.” Darden, 145 Wn.2d at 622. “Accordingly,

a defendant's interest in presenting relevant evidence may ‘bow to accommodate other

legitimate interests in the criminal trial process.’” Lizarraga, 191 Wn. App. at 553.

Kottenbrock first contends the trial court foreclosed his right to present a defense

by excluding the CAD logs from Kottenbrock’s two 911 calls in January 2018. He

contends this evidence was necessary to show that he acted on his fear by calling the

police. But Kottenbrock was permitted to testify extensively regarding these incidents.

He was also permitted to introduce testimony from the officer who responded to the

rock-throwing incident, and the CAD log was marked, identified, and discussed during

her testimony. The court did not prevent Kottenbrock from testifying to any aspect of

the incidents documented in the CAD logs. The court did not err in concluding that the

probative value of the CAD logs was substantially outweighed by the danger of

confusing the jury and presenting needlessly cumulative evidence under ER 403.

Kottenbrock further argues that the court violated his right to present a defense

by excluding documents from his and Sunderland’s protection orders. He contends that

these documents were highly probative to show the subjective and objective

reasonableness of his fear, as well as to rebut the State’s implication that he acted out

of anger. But the trial court permitted Kottenbrock to testify regarding the substance of

the information in his own petition. Kottenbrock’s petition and denial order were marked

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and referred to during his testimony. Nor did the court err in excluding Sunderland’s

2015 and 2018 petitions under ER 403. Sunderland did not testify at trial, and because

the documents contain her version of events, they were inadmissible hearsay. The

court properly limited Kottenbrock’s testimony regarding Sunderland’s petitions to

events of which he had personal knowledge. As with the CAD logs, the court did not err

in excluding these documents on the basis that their probative value was outweighed by

the danger of presenting needlessly cumulative evidence.

Kottenbrock further asserts that the court erred in excluding certain out-of-court

statements that he and Sunderland made during the January 15 incident, including (1) a

phone conversation in which Sunderland allegedly called Kottenbrock to ask him to pick

her up at Greening’s house and (2) their statements to each other after the incident,

asking and verifying that each was unharmed. He contends that these statements were

highly probative because they showed the parties were aware Schroeder presented a

threat and that they were concerned for each other’s safety. We agree with the State

that such statements were only marginally probative and that their exclusion did not

violate Kottenbrock’s right to present a defense.

Kottenbrock further argues that the court erred in excluding past incidents known

to him of harassment, threats, and assaults by Schroeder against Sunderland and her

family and friends. However, Kottenbrock was permitted to testify regarding certain

threats to Sunderland of which he had personal knowledge, and it is not clear which

specific incidents or evidence the trial court improperly prohibited him from testifying to.

This argument is not sufficiently briefed to permit review. Cowiche Canyon

Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

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Kottenbrock’s reliance on Jones and Duarte Vela is misplaced. In Jones, a rape

case, the trial court permitted the defendant to testify that the sexual contact was

consensual, but prohibited him from presenting evidence that the contact took place at a

“nine-hour alcohol and cocaine fueled sex party.” 168 Wn.2d at 717-18. In Duarte

Vela, a murder case, the trial court excluded evidence that while in prison the victim had

previously threatened to kill Duarte Vela’s family. Duarte Vela offered the evidence to

demonstrate his reasonable fear of the victim—an element of his self-defense claim.

200 Wn. App. at 310-314. In both cases, the appellate court ruled that the trial court

deprived the defendant of his right to present a defense because the excluded evidence

was highly probative and central to the defendant’s ability to explain his actions. Jones,

168 Wn.2d at 717, 724; Duarte Vela, 200 Wn. App. 320, 326. Here, in contrast,

Kottenbrock had ample opportunity to fully present his theory of the case that he acted

out of fear and in self-defense. The excluded evidence did not violate his right to

present a defense.

III.

For the first time on appeal, Kottenbrock argues that the trial court erred in

imposing a condition of community custody requiring him to “[p]ay supervision fees as

determined by the Department of Corrections.” He contends that RCW 10.01.160(3)

prohibits the imposition of costs on an indigent defendant and that the court failed to

conduct an individualized inquiry into his ability to pay.

RCW 9.94A.703(2)(d) provides that, “[u]nless waived by the court, as part of any

term of community custody, the court shall order an offender to . . . [p]ay supervision

fees as determined by the DOC.” RCW 10.01.160(3), as recently amended, provides

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that “[t]he court shall not order a defendant to pay costs unless the defendant is or will

be able to pay them. In determining the amount and method of payment of costs, the

court shall take account of the financial resources of the defendant.” In State v. Blazina,

182 Wn.2d 827, 834, 344 P.3d 660 (2015), the Washington Supreme Court held that

this statute requires “each judge to conduct a case-by-case analysis and arrive at an

LFO order appropriate to the individual defendant's circumstances,” requiring an

individualized inquiry on the record. Thus, a Blazina inquiry is required for discretionary

LFOs. State v. Clark, 191 Wn. App. 369, 373, 362 P.3d 309 (2015). Because

supervision fees are waivable by the trial court, they are discretionary LFOs. State v.

Dillon, __ Wn. App. 2d __, 456 P.3d 1199 (2020). We review a decision to impose

LFOs for an abuse of discretion. State v. Clark, 191 Wn. App. 369, 372, 362 P.3d 309

(2015).

It is undisputed that Kottenbrock raises this issue for the first time on appeal. For

this reason, the State asserts this court should decline review. Alternatively, the State

contends that the supervision fee is not a “cost” as defined in RCW 10.01.160, and the

court was therefore not required to inquire into Kottenbrock’s ability to pay before

imposing the fee.

An appellate court may refuse to review any claim of error which was not raised

in the trial court. RAP 2.5(a). “A defendant who makes no objection to the imposition of

discretionary LFOs at sentencing is not automatically entitled to review.” State v.

Blazina, 182 Wn.2d at 832. Issue preservation helps promote judicial economy by

ensuring “that the trial court has the opportunity to correct any errors, thereby avoiding

unnecessary appeals.” State v. Robinson, 171 Wn.2d 292, 305, 253 P.3d 84 (2011). In

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Blazina, the Washington Supreme Court exercised its RAP 2.5(a) discretion to reach

the merits of the defendant’s unpreserved LFO challenge due to the nationwide

importance of LFO reform and to provide guidance to our trial courts. 182 Wn.2d at

830. The State contends that, unlike the LFOs at issue in Blazina, there is no pressing

need to address the issue because the DOC supervision fee is a modest expense that

can be waived by DOC if Kottenbrock is unable to pay. Under these circumstances, we

decline to exercise discretion to waive Kottenbrock’s failure to object below.

Affirmed.

WE CONCUR: