STATE v. HEIDLEBAUGH

ARMSTRONG, J.

Wesley Gene Heidlebaugh appeals his conviction of felony stalking in violation of a no-contact order — domestic violence. He argues that (1) the trial court erred in admitting evidence of intent to commit an unrelated offense, (2) the trial court erred when it excluded evidence suggesting another perpetrator, and (3) his trial counsel was ineffective for failing to object to impermissible opinion testimony. We affirm.

FACTS

In July 2003, Heidlebaugh assaulted his former girlfriend, Margo Ducourno, in the parking lot outside her home. This resulted in a no-contact order prohibiting him from contacting Ducourno.

From early August through the end of November 2003, after the no-contact order was issued, Ducourno received numerous unwelcome telephone calls from someone she identified as Heidlebaugh. The State charged Heidlebaugh by amended information with one count of felony stalking in violation of the protective order and alleged that this was a crime of domestic violence. In the alternative, the State charged him with four counts of violation of the no-contact order. The case went to a jury trial.

Ducourno testified that in early August, she started receiving a variety of derogatory or threatening calls and messages from Heidlebaugh. She also received numerous hang-up calls from unidentified callers. She estimated that she received an average of three to five calls a day.

Most of the calls were to her home phone, a phone she shared with her roommate Michael Miller. Although the majority of the calls came when Miller was not home, he testified that in late September or early October, he answered two calls from Heidlebaugh.

Ducourno testified that when the caller spoke and did not just hang up, she recognized Heidlebaugh's distinctive voice. She stated that in these calls the caller would say things like `cluck,' tell her she was fat, tell her she needed to get some sun, or make other comments suggesting that he was observing her. In one call, the caller said, `Tick-tock.' II Report of Proceedings (RP) at 33. In another he said, `Why don't you come down to the parking lot so I can kick your ass again.' II RP at 42.

In addition to the calls to her home phone, the caller left two voice mail messages on her boyfriend Michael Brooks's cellular telephone. Ducourno provided a tape recording of these messages, and the trial court allowed the jury to listen to the tape. Ducourno identified the caller in both messages as Heidlebaugh.

Ducourno also testified about other alleged contacts by Heidlebaugh. First, some time in October, she observed a man with blond hair, blue jacket, and a `scruffy white face,' drive by in a maroon van while she and some friends were outside in the parking lot around midnight. II RP at 37. As the man drove past, he shouted `F' in `B' at her. II RP at 36-37. Although Ducourno could not clearly see the person in the van, she believed it was Heidlebaugh, in part because his mother's neighbor had an identical van and Heidlebaugh worked as a mechanic and often had access to other people's vehicles. The people who had been with her in the parking lot also could not identify the man in the van; they confirmed, however, that a maroon van drove by and that the person inside the van shouted derogatory remarks at Ducourno.

Second, Ducourno testified that at one point she found a keychain she had left with Heidlebaugh on the windshield of Brooks's car.

Ducourno testified that the repeated contacts frightened her to the point that she was unwilling to go out of her house alone because she was afraid Heidlebaugh would attack her again. She further testified that when he beat her up in July, he said that if he could not have her, no one could. Several of Ducourno's friends testified that they witnessed Ducourno receive the calls; that the calls upset her; that she expressed fear that Heidlebaugh would hurt her; and that she frequently identified the caller to them as Heidlebaugh or Arlene, Heidlebaugh's new girlfriend.

During her testimony, Ducourno was initially unsure about the dates of some of the specific contacts she described, but she testified that she had notes at home that would provide more detail. Over the lunch hour, she retrieved her notes and, after reviewing her notes, she was able to testify more specifically about the dates of the contacts.

On cross-examination, defense counsel attempted to ask Ducourno whether she had received threats from other people. Ducourno responded that she had received threats related to `a prior incident' but that these threats ceased in June. II RP at 65.

Defense counsel then asked Ducourno whether the earlier incident involved Michael Hale and an attempted murder case in which she was a witness. The prosecutor objected, arguing that this testimony was irrelevant because the prior events did not occur between August and the end of November.

Outside the presence of the jury, defense counsel argued that there was some time overlap because although one attempted murder trial ended in June, a second related trial continued into September. He stated that it was also possible that the defendants in those cases could have arranged to have others call Ducourno while they were in jail and did not have access to phones. He further argued that this information was relevant because it could have explained the volume of calls, many of which were from unidentified callers, and because the second trial was still ongoing during the relevant time period.

The trial court sustained the State's objection, finding the connection to the calls Ducourno received during the charging period too speculative. The trial court offered to reconsider its decision if the defense could show a link between the calls Ducourno received between August and the end of November to someone other than Heidlebaugh. Neither party moved to strike any of Ducourno's testimony.

The State also asked the trial court to rule on whether it could introduce evidence that Heidlebaugh asked Tammy Weiss, an ex-girlfriend who worked for the Portland police department, to obtain information about Brooks and that he told Weiss he wanted to blow up Brooks's vehicle and hoped Ducourno would be in it when he did. The State argued that this evidence was relevant to whether Heidlebaugh intended to frighten Ducourno. Defense counsel responded that this evidence `might have some marginal relevance,' but argued that the court should not admit it because it was too inflammatory and prejudicial. II RP at 93.

The trial court refused to allow testimony about Heidlebaugh's attempt to obtain information from Weiss, but it admitted the evidence related to his expressed desire to blow up Brooks's vehicle with Ducourno in it. Specifically, the trial court found that this statement went to Heidlebaugh's `state of mind.' II RP at 95.

Weiss then testified that Heidlebaugh contacted her by phone in September or October and that he told her `he was going to blow up [Ducourno's] boyfriend's car and hoped that she was in it.' II RP at 99. The record does not show that either party requested a limiting instruction related to this evidence.

The State also presented testimony from Brian Eastham, an acquaintance of Heidlebaugh's who lived near Heidlebaugh's mother. Eastham testified that some time in September, Heidlebaugh approached him and asked him about Ducourno and her new boyfriend. He responded that he did not know anything about them. He characterized Heidlebaugh as hostile and intimidating during this contact.

Detective Carole Boswell also testified. After introducing herself as a `domestic violence detective,' she described her position; how cases were assigned to her; and her contact with Ducourno, whom she characterized as `the victim.' III RP at 155-56. She testified that she helped Ducourno construct a timeline of Heidlebaugh's alleged contacts. But she also testified that she could not link any of the calls directly to Heidlebaugh. Defense counsel did not object to Boswell's testimony.

Boswell testified as follows:

Q. Detective Boswell, could you tell us your occupation, please.

A. I am a — I am the domestic violence detective for the Vancouver Police Department.

. . .

Q. And as the domestic violence detective, how are your cases assigned to you?

A. I receive cases that patrol needs assistance with. They come through my sergeant. And I also receive cases occasionally from the prosecutor's office. They request that I clean up a case or address any issues that weren't addressed when the patrol officers originally responded.

Q. Were you familiar — did you become familiar with a case involving Wesley Heidlebaugh?

A. Yes, I did.

Q. What time were you — did you become involved with that case?

A. It was late November. I think I began follow-up on the 25th of November, last year.

Q. I'm not going to ask you specifically about what people told you, but I would like for you to describe what it was that you did to follow up on the case.

A. Well, I have — every domestic violence case I have a checklist of things that I go through. What I did on this case was initiate contact with — with witnesses, names of witnesses that came up.

I also sat down with the victim in the case, Margo Ducourno, and used a calendar to lay out the dates or as close as she could come to the dates for different incidents that she was reporting, the harassment she was reporting.

Q. And did you also do any or attempt any follow-up with phone calls?

A. Yes, I did.

Q. Were you able to link any phone calls to Mr. — Mr. Heidlebaugh?

A. Not directly.
III RP at 155-56 (emphasis added).

Immediately following Boswell's testimony, the State moved to publish exhibits 1 and 3. Defense counsel did not object, and the jury reviewed the two exhibits. Although neither party specifically identified these exhibits on the record, it appears they were the police reports Boswell completed and referred to in her testimony.

These exhibits are not part of the record on appeal.

Heidlebaugh testified in his defense, acknowledging the assault and the no-contact order but denying any contact with Ducourno after the no-contact order was issued. Heidlebaugh also asserted that he had not spoken to Weiss for more than two years and denied telling her that he wanted to blow up Brooks's vehicle. He also denied calling Miller after July or knowing Eastham.

Although he admitted he was a mechanic and that he had access to his customers' vehicles, he asserted that he did not have a license and, therefore, did not drive his customers' vehicles. Additionally, he admitted to having worked on a maroon van, but he denied driving it.

The jury convicted Heidlebaugh on the stalking charge. He appeals.

ANALYSIS I. Evidence of Intent to Commit an Uncharged Offense

Heidlebaugh first contends that the trial court violated his right to a fair trial by allowing the State to present evidence that he `contemplated committing or intended to commit an unrelated, uncharged offense' in violation of ER 404(b). Br. of Appellant at 12. Specifically, he argues that the State should not have been allowed to present evidence that he told Weiss he wanted or intended to blow up Brooks's vehicle because this evidence was irrelevant to the stalking charge and `its sole purpose was to portray the defendant as a violent person who would commit the acts of harassment that were alleged in the stalking charge.' Br. of Appellant at 16. We disagree.

We review a trial court's ruling on the admissibility of evidence for an abuse of discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). An abuse of discretion occurs when the trial court exercises its discretion on untenable grounds or for untenable reasons. Coggle v. Snow, 56 Wn. App. 499, 507, 784 P.2d 554 (1990) (citation omitted).

Evidence of other crimes is not admissible to prove the defendant's propensity for criminal conduct. ER 404(b). But such evidence may be admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. ER 404(b).

This argument has no merit. The trial court instructed the jury that to find Heidlebaugh guilty, it had to find that he intentionally harassed or followed Ducourno and that he acted either with the intent to frighten, harass, or intimidate her or that he knew or reasonably should have known she was afraid, intimidated, or harassed. Thus, Heidlebaugh's intent and state of mind were clearly at issue. His statement to Weiss was relevant to his motive and his intent, and the trial court did not abuse its discretion in admitting this evidence on that basis.

We note that Heidlebaugh does not argue on appeal that the trial court failed to properly balance the prejudicial and probative nature of this evidence on the record.

II. Evidence of Another Perpetrator

Heidlebaugh next argues that the trial court denied him a fair trial when it refused to allow him to present evidence that would have suggested another perpetrator. Again, we disagree.

A criminal defendant has a constitutional right to present all admissible evidence in his defense. State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992) (citing State v. Austin, 59 Wn. App. 186, 194, 796 P.2d 746 (1990)). Evidence is admissible when relevant, that is when it has `any tendency to make the existence of any fact . . . of consequence . . . more . . . or less probable,' provided other evidence rules do not preclude its admission. ER 401; 402. As noted above, we review a trial court's decision to admit or exclude evidence for abuse of discretion. Powell, 126 Wn.2d at 258.

But a defendant's right to present potentially exculpatory evidence is not absolute. Rehak, 67 Wn. App. at 162 (citing State v. Drummer, 54 Wn. App. 751, 755, 775 P.2d 981 (1989)). When a defendant seeks to introduce evidence connecting another person with the charged crime, he must first lay a proper foundation: `[E]vidence connecting another person with the crime charged is not admissible unless there is a train of facts or circumstances which tend clearly to point to someone other than the defendant as the guilty party.' In re Pers. Restraint of Lord, 123 Wn.2d 296, 316, 868 P.2d 835 (1994) (citing State v. Mak, 105 Wn.2d 692, 716-17, 718 P.2d 407 (1986)). Mere evidence of another party's motive to commit a crime is inadmissible; there must be some tangible connection between the other person and the commission of the crime charged. State v. Clark, 78 Wn. App. 471, 478, 898 P.2d 854 (1995) (citing State v. Kwan, 174 Wash. 528, 533, 25 P.2d 104 (1933)).

Ducourno testified that she had received threatening calls prior to August, that these calls related to another `incident,' and that these calls ceased in June 2003. II RP at 65. In addition to this testimony, Heidlebaugh wanted to introduce evidence that the other `incident' related to an attempted murder and that only one of the attempted murder trials was resolved prior to August to suggest that some of the calls Ducourno had received were from someone other than Heidlebaugh. The trial court ruled that without more evidence tying someone else to the calls Ducourno received between August to November, this evidence was too speculative to be admissible. We agree.

Although there was evidence that Ducourno had received threatening calls related to the first attempted murder trial until June 2003, Heidlebaugh presented no evidence directly connecting anyone related to the attempted murder trials to the later calls. While it was possible that the calls Ducourno could not identify came from another person, it was entirely speculative that they came from anyone related to the attempted murder trials. Accordingly, the trial court did not abuse its discretion in refusing to admit this evidence.

Further, although Ducourno was not able to identify who made the numerous hang up calls, she was able to identify Heidlebaugh when he spoke. Additionally, Miller identified Heidlebaugh as calling the house twice, and at least some of the comments the caller made related to events, such as the assault, in which Heidlebaugh was involved. And there was no suggestion in the record that someone else with a voice similar to Heidlebaugh's was connected to the calls Ducourno received between August and the end of November. Accordingly, the trial court did not abuse its discretion in finding that the connection between the calls at issue and the attempted murder trials was too tenuous to justify admission of this evidence.

III. Ineffective Assistance: Impermissible Opinion Testimony

Finally, Heidlebaugh contends that his trial counsel was ineffective for failing to object to Boswell's testimony. He argues that his counsel should have objected to Boswell's testimony because (1) her identification of herself as a domestic violence detective and expert in domestic violence, coupled with her statement that Ducourno was `the victim,' amounted to impermissible opinion testimony; and (2) her testimony was irrelevant.

To establish ineffective assistance of counsel, Heidlebaugh must show that his trial counsel's performance was deficient and that the deficient performance resulted in prejudice. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997) (citing State v. Brett, 126 Wn.2d 136, 198-99, 892 P.2d 29 (1995)). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. Stenson, 132 Wn.2d at 705. Prejudice occurs if, but for the deficient performance, there is a reasonable probability that the outcome would have differed. Stenson, 132 Wn.2d at 705-06. We give considerable deference to counsel's performance, and our analysis begins with a strong presumption that counsel was effective. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) (citing Brett, 126 Wn.2d at 198).

An opinion as to a defendant's guilt is an improper lay or expert opinion because the determination of the defendant's guilt or innocence is a question for the trier of fact. State v. Garrison, 71 Wn.2d 312, 315, 427 P.2d 1012 (1967) (citing State v. Trombley, 132 Wash. 514, 232 P. 326 (1925)). But here, Boswell's testimony describing her position as a domestic violence detective and her reference to Ducourno as the `victim,' did not amount to opinion testimony as to Heidlebaugh's guilt or the credibility of her allegations. At most, Boswell described her position and background, said she was investigating Ducourno's allegations against Heidlebaugh, and identified Ducourno as the alleged victim in the case. Boswell did not opine as to the veracity of Ducourno's allegations. In fact, she testified that she was unable to connect the calls directly to Heidlebaugh. None of this testimony, taken in context, amounted to direct or implied opinion testimony.

Additionally, because of the charges and testimony, the jury was well aware from a variety of sources that the State had charged this offense as a domestic violence offense. They were also fully aware that the alleged victim was Ducourno. The fact that a domestic violence detective investigated an allegation of domestic violence and identified the reporting party as a `victim,' did not provide the jury with any facts they did not already have.

Further, the cases Heidlebaugh relies on are easily distinguished. In State v. Carlin, the defendant argued that a police officer's testimony that police dog tracked defendant by following a `fresh guilt scent' amounted to opinion testimony. State v. Carlin, 40 Wn. App. 698, 703, 700 P.2d 323 (1985), overruled on other grounds, City of Seattle v. Heatley, 70 Wn. App. 573, 854 P.2d 658 (1993). But the appellate court did not resolve this issue. Instead, it presumed that the comment was error and affirmed based on harmless error. Carlin, 40 Wn. App. at 703.

In State v. Haga, the appellate court held that opinion testimony of ambulance driver that the defendant had not shown any signs of grief following the murders of his wife and daughter was wrongfully admitted because the jury could infer from this testimony that the ambulance driver believed that the defendant was guilty. State v. Haga, 8 Wn. App. 481, 507 P.2d 159 (1973). Here, Boswell's identification of herself as a domestic violence detective and her reference to Ducourno as the `victim,' taken in context, did not imply that Ducourno's allegations were necessarily true and did not communicate whether Boswell found Ducourno's allegations credible.

And, in State v. Black, our Supreme Court held that testimony from a social worker stating that an alleged rape victim fit the profile of a rape victim amounted to impermissible opinion testimony because it implied that the victim was telling the truth. State v. Black, 109 Wn.2d 336, 341, 348-50, 745 P.2d 12 (1987). Again, as with Haga, Boswell's testimony did not communicate whether she believed Ducourno's allegations or suggest that they were credible.

And finally, although Boswell's testimony arguably has marginal relevance, it appears that the State called Boswell to introduce her reports and to explain her role in helping Ducourno reconstruct a timeline of the events.

Because Heidlebaugh fails to show that Boswell's testimony was inadmissible, his counsel's failure to object was not error and his ineffective assistance of counsel claim fails.

We affirm.

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 pursuant to RCW 2.06.040, it is so ordered.

MORGAN, A.C.J., and HOUGHTON, J., Concur.