MORGAN, J.
Ernest L. Brazzel appeals convictions for assaulting Dorothy Kottman. He contends that the trial court erred by admitting evidence of two uncharged assaults that had occurred in 1997; that the evidence is insufficient to support conviction; and that he was subjected to double jeopardy. We affirm.
In March 1997, Brazzel and Kottman became romantically involved. In late April or early May 1997, at an apartment in the Woodbrook area of Pierce County, they consumed alcohol and crack cocaine. When they left, Kottman dropped Brazzel off in the Tillicum area of Pierce County. She then met and accompanied another man to an apartment the location of which is not clear from the record. She and the other man engaged in sexual intercourse, which Brazzel apparently observed through a window. Brazzel entered the apartment, grabbed Kottman by the throat and hair, and dragged her out to the car. After driving to a different location, he beat her. They later `discuss{ed} the incident' and decided not to `dwell on it.'
Report of Proceedings (RP) at 454.
In June 1997, Kottman was fired from her job and lost her apartment. For the next few months, she and Brazzel lived out of a car or with friends, except when he was in jail.
In July 1997, Brazzel and Kottman were staying with a friend named Jerome Johnson. One day, on their way back to Johnson's after smoking crack and drinking elsewhere, Brazzel struck Kottman in the head twice.
When they arrived at Johnson's, Brazzel accused Johnson of looking at Kottman `in the wrong way,' `grabbed {him} by the throat and slammed him against the wall{.}' He then took Kottman into a bedroom and beat her.
RP at 460.
RP at 461.
A day or two later, the State charged Brazzel with assaulting Kottman. He pled guilty to unlawful imprisonment and served time in the county jail. He was released in October 1997, Kottman met him at the jailhouse door, and they resumed their relationship.
From April 15 to April 22, 1998, Brazzel beat Kottman three times while they were staying at the home of a friend named Russell Clark. The first time, Brazzel used a broomstick and an aluminum metal crutch, thinking she had engaged in sexual intercourse with another man. The second time, he used a crutch, thinking she had engaged in sexual intercourse with Clark. The third time, he beat her so severely she had difficulty walking. Clark asked them to leave his home, which they did.
For the rest of April and the first few days of May, Brazzel and Kottman lived with a mother and son named Erika and James Collins. During that time, Brazzel beat Kottman twice with a baseball bat.
On May 7, 1998, Kottman and Brazzel moved into their own apartment. About three days later, Brazzel told Kottman that she `wasn't going to be around much longer,' and that she would die on May 14. He asked where she wanted her body to be found.
RP at 518.
On May 14, 1998, Brazzel told Kottman that she would not die that day after all. He added, however, that she should not `get comfortable.'
RP at 520.
On May 15, 1998, Brazzel accused Kottman of having a relationship with another woman. He demanded that she contact the other woman on the phone.
When she could not reach the other woman, he beat her with a metal towel rack, a Thunderbird bottle, and a baseball bat. The assault lasted from about 6:00 p.m. to 10:00 p.m., when Kottman lost consciousness.
About 10 a.m. the next morning, Kottman's mother phoned Brazzel and Kottman's apartment. Someone answered the phone, but no one spoke directly into it. Instead, the mother heard `a big crash' and `really severe yells and screams,' followed by her daughter pleading `Stop! Stop!' and `Don't!' The mother heard Brazzel say, `You can get up, you mother f{ucker},' then another `slam and slap.' The mother called 911.
RP at 171.
RP at 171.
RP at 172.
RP at 172.
About ten minutes later, a deputy arrived at the apartment. While still outside, he could hear a male voice yelling angrily and the sounds of `hand slapping skin.' When the deputy knocked and identified himself, a male inside the apartment yelled that he had not called the police and would not open the door.
RP at 190.
A second deputy had arrived by now, and the two of them forced the door. They entered and found Brazzel kneeling on a mattress covered with blankets. Kottman was under the blankets, unresponsive but still breathing. Brazzel said she had been injured in an automobile accident.
Kottman was in the hospital for about a week. She was `entirely purple . . . {and} {h}er eyes were swollen shut' due to `{s}evere blunt force.' She went `through a slow state of shock with the dropping pressure and the tachycardia,' and that might `have continued had she not been given the volume of . . . blood.' She was at `risk for central nervous system injury, where you would have not enough pressure or volume to profuse the brain and not enough blood to get oxygen to the brain.'
RP at 627.
RP at 634.
RP at 631.
RP at 631.
On May 18, 1998, the State filed an information which, as later amended, charged three counts. Count I alleged attempted first degree murder or, in the alternative, first degree assault, committed between May 10 and May 16, 1998. Count II alleged second degree assault, committed between May 4 and May 11, 1998. Count III alleged second degree assault, committed between April 15 and April 22, 1998.
A jury trial was held later the same year. The jury convicted of first degree assault on Count I, of second degree assault on Count II, and of second degree assault on Count III. Brazzel appealed, and the State conceded that a significant jury instruction was erroneous. Accordingly, we remanded for a new trial.
State v. Brazzel, No. 24224-9-II, 2000 WL 349761 (Wash.Ct.App. 2000).
Before the new trial started, the State offered to prove the uncharged assault on Kottman in March 1997, the uncharged assault on Kottman in July 1997, and the uncharged assault on Johnson in July 1997. Brazzel objected, claiming that each of these assaults was substantially more prejudicial than probative and thus inadmissible under ER 403. The trial court excluded the assault on Johnson but admitted the two uncharged assaults on Kottman. Brazzel then proposed that the court limit the jury's use of the admitted uncharged assaults to the issue of credibility only, and the court agreed to do that.
The new trial commenced on August 2, 2001. Kottman and other witnesses testified essentially as set forth above. Just before Kottman's testimony about the uncharged 1997 assaults, the court orally instructed the jury:
Before this evidence is allowed, the court advises you that you may consider evidence on the subject of prior incidents of domestic violence for the limited purpose of assessing the credibility of the witness. You must not consider this evidence for any other purpose.
Brazzel opted not to testify, but he called a medical doctor on the nature and extent of Kottman's injuries.
At the close of the evidence, the trial court reiterated its limiting instruction to the jury. It stated orally and in writing:
Evidence has been introduced on the subject of Defendant's prior conviction and prior incidents of domestic violence for the limited purpose of assessing credibility of a witness and you must not consider this evidence for any other purpose.
On August 15, 2001, the jury convicted Brazzel of first degree assault and two counts of second degree assault. The judge imposed 240 months, and Brazzel filed this appeal.
I.
Brazzel first argues that the trial court erred by not excluding the two uncharged assaults from 1997. We disagree.
In State v. Powell, the defendant was charged with murdering his wife. The State offered to prove that he had assaulted her on twelve uncharged occasions during the course of their relationship. The trial court admitted five of those occasions, in part to prove that the tumultuous nature of their relationship had motivated him to murder her.
126 Wn.2d 244, 893 P.2d 615 (1995).
The Supreme Court affirmed on that ground.
The Supreme Court also reasoned that the five prior assaults were part of the `res gestae,' but we need not resort to that phrase here. We note with interest Professor Wigmore's well-known admonition, which reads as follows:
It is sometimes said that such acts are provable as a part of the `res gestae.' But this phrase is unsatisfactory, first because it is obscure and indefinite and needs further definition and translation before either its reason or its scope can be understood, secondly because its very looseness and obscurity lend to many opportunities for its abuse, and thirdly because it has common application to other rules of evidence. . . . It is not too much to say that it is nowadays most frequently used merely as a cover for loose ideas and ignorance of principles. It is occasionally used to admit acts whose real function is to show intent or motive or design. But when we ignore the correct purposes of admission and substitute an indefinite and meaningless phrase of this sort, the result is only to make rulings on evidence arbitrary and chaotic. The term `res gestae' should be once and for all abandoned as useless and confusing. Let it be said that such acts are receivable as `necessary parts of the proof of an entire deed,' or as `inseparable elements of the deed,' or as `concomitant parts of the criminal act,' or anything else that carries its own reasoning and definition with it; but let legal discussion sedulously avoid this much-abused and wholly unmanageable Latin phrase.
1A Wigmore on Evidence sec. 218, 1888 (Tillers rev. 1983).
In State v. Stenson, the defendant was charged with murdering his wife and another man. The State offered to prove that the defendant had told a witness that he did not want his wife `gallivant{ing} around town' and that `she was to stay there at the house.' It also offered to prove that the defendant had told his wife, in the presence of another witness, that `she would be in a lot of trouble' if anything happened to his truck. The State argued that each offer was relevant to prove the nature of the defendant's relationship with his wife, while the defendant argued that each offer primarily showed the defendant's propensity to be `a controlling husband and a mean man.' The trial court admitted the offered evidence, and the Supreme Court affirmed. Citing Powell, it reasoned that the evidence tended to show that the defendant and his wife had `a hostile relationship' that arguably had motivated him to commit the crime charged.
132 Wn.2d 668, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).
132 Wn.2d at 699.
132 Wn.2d at 700.
132 Wn.2d at 701.
132 Wn.2d at 702.
In this case, Brazzel was charged with assaulting Kottman, his girlfriend, in 1998. The State offered the two uncharged 1997 assaults in part to prove that the tumultuous nature of Brazzel and Kottman's relationship had motivated him to commit the charged assaults. As in Powell and Stenson, the trial court here had discretion to admit the two uncharged assaults for that purpose.
We do not overlook the trial court's limiting instruction, which told the jury to consider the uncharged 1997 assaults only `for the limited purpose of assessing the credibility of a witness.' Assuming without holding that the instruction was erroneous, any error was invited by Brazzel, its proponent. In addition, the error was not prejudicial from Brazzel's point of view it gave him more, not less, than that to which he was entitled and we may affirm on grounds other than those employed by the trial court. The uncharged 1997 assaults were admissible under Powell and Stenson, and the trial court's reasons for admitting them do not warrant reversal.
When as here evidence of uncharged crimes, wrongs or acts is offered to cast doubt on a witness' character for truthfulness, its admissibility is governed not by the second sentence of ER 404(b), which applies when evidence is offered for a purpose other than character, but rather by ER 404(a)(3) and ER 608(b). To the extent State v. Grant, 83 Wn. App. 98, 100, 920 P.2d 609 (1996), suggests to the contrary, we question its reasoning, though not necessarily its result. Because the uncharged 1997 assaults were admissible for purposes unrelated to credibility, Grant's flaws, if any, are immaterial to this case.
See State v. Bradley, 141 Wn.2d 731, 736, 10 P.3d 358 (2000) (invited error does not warrant reversal); State v. Henderson, 114 Wn.2d 867, 792 P.2d 514 (1990). When the court and counsel were discussing whether to limit the jury's use of the 1997 assaults to the issue of credibility, they did not identify the person or persons whose credibility might (or might not) be in issue. (We note, for example, that Brazzel's credibility was not in issue because he did not testify.) In the court's oral limiting instruction, it told the jury that it could consider the uncharged assaults only for the limited purpose of assessing the credibility of `the' witness.
In the court's written limiting instruction, it changed `the' to `a.' Brazzel now makes much of this change on appeal, but we decline to reverse on that basis. It was a minor aspect of an instruction that should not have been given in the first instance, that he proposed, and about which he cannot now complain.
See ER 103(a) (`Error may not be predicated upon a ruling which admits . . . evidence unless a substantial right of the party is affected').
State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). It would be silly to require a new trial at which the very same evidence would again be admitted.
II.
Brazzel also claims that the evidence is not sufficient to support his conviction for first degree assault with a deadly weapon. `The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.' When applying that test in a criminal case, `all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant.' `A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm{,} {a}ssaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death{.}'
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)).
Salinas, 119 Wn.2d at 201 (citing State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977)).
RCW 9A.36.011(1)(a).
According to Kottman, Brazzel told her that she was going to die on May 14 and, later, that she should not `get comfortable' even though she had not died on May 14. Then, on May 15, he beat her all over her body with a towel rack, Thunderbird bottle, and a baseball bat for approximately four hours. According to Dr. Joseph, Kottman could have died without a blood transfusion. Viewing this evidence in the light most favorable to the State, it is sufficient to support a conviction of first degree assault with a deadly weapon.
III.
Relying on the double jeopardy clause, Brazzel claims pro se that he should not have been tried for attempted first degree murder in the second trial, given that the jury in the first trial had acquitted him of that crime. If his claim is valid, we should dismiss the charge of attempted first degree murder. Yet that has already been done, because he has essentially been acquitted of that charge. Assuming that his contention was valid earlier, it is moot now.
In re Mines, 146 Wn.2d 279, 283, 45 P.3d 535 (2002); State v. Ford, 99 Wn. App. 682, 687, 995 P.2d 93 (2000).
Affirmed.
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.
BRIDGEWATER, J. and HUNT, C.J., concur.