Washington Appeals Court Finds Pregnancy Admissible in Domestic Violence Case

Some evidence, though relevant, may be unfairly prejudicial.  A court must balance the probative value of evidence against the risk of unfair prejudice.  If the risk of unfair prejudice substantially outweighs its probative value, the evidence must be excluded.  Washington domestic violence attorneys know that some facts about an alleged victim could be prejudicial to their client.

A Washington appeals court recently considered whether the trial court erred in allowing limited evidence of the alleged victim’s pregnancy when the defendant appealed his conviction of a misdemeanor violation of a court order with a special finding of domestic violence.

There was a domestic violence no-contact order prohibiting the defendant from contacting or coming within 500 feet of the mother of his child.  The woman was pregnant at the time with another child that was believed to be the defendant’s.

There were two calls to 911 three days after the issuance of the no-contact order.  The first caller stated a man had hit her pregnant friend.  The caller hung up.  The second caller said she had been assaulted and was four to six months pregnant.  She asked that a police officer be sent to the scene, and the 911 operator also sent fire department medical personnel.

The woman told police she had picked the defendant up, and he became angry with her in the car.  She said he slapped her face and punched her head and lower body.  She said he left when her friend called 911.  The friend gave a similar statement and also said the defendant hit her when she tried to step in.

A lieutenant with the fire department determined the woman did not need medical attention, although an officer noted she had scratches on her arms.

The defendant was charged with domestic violence felony violation of a court order, plus assault in the fourth degree for allegedly striking the friend.

The defendant moved to exclude evidence of the pregnancy.  The prosecutor argued it was relevant because it supported that there had been a harmful or offensive touching, an element of the charge of domestic violence felony violation of a court order.

The defense argued that evidence of the pregnancy would be prejudicial and that the state could “argue that a reasonable person would find any kind of hitting harmful or offensive.” The defense asked that if the court allowed the portion of the 911 call that referenced the pregnancy, it limit the amount the state could argue about the pregnancy in its closing argument.  The state agreed.  The judge found that it was relevant and that the 911 testimony or tape would be admitted.  The prosecutor later sought clarification that the testimony of the firefighter and his report, as well as the statement to the officer that the woman was worried about her baby, would be admissible.  She stated that she would not “hammer” it during closing, but it would be discussed.  The court and defense counsel agreed.

The pregnancy was referenced during the state’s case and closing argument.  Defense counsel did not object.

Rather than the felony violation of a court order charge, the jury instead convicted the defendant of misdemeanor violation of a court order with a domestic violence special finding.  He appealed.

A trial court may only admit relevant evidence, which is any evidence with a tendency to make a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evidence is admissible even if it is only minimally relevant.  Relevant evidence must be excluded, however, if the danger of unfair prejudice substantially outweighs its probative value.

The appeals court found the trial court did not abuse its discretion in allowing limited evidence of the pregnancy.  The appeals court noted this ruling was suggested by defense counsel.  The appeals court found the defendant could not argue an error by the trial court in adopting his own attorney’s suggestion.  Furthermore, he did not object that the state had violated the court’s ruling during trial.

The appeals court also found the pregnancy and strike to the woman’s abdomen were material to whether the defendant had committed a harmful or offensive touching.  The appeals court found the trial court had properly balanced relevance against the potential of unfair prejudice in allowing, but limiting, references to the pregnancy.  The appeals court affirmed the conviction.

Whether you are facing criminal charges or a civil protection order proceeding, the experienced Washington domestic violence attorneys at Blair & Kim, PLLC can help you. Call us at (206) 622-6562 to discuss your case.

More Blog Posts:

No-Contact Orders in Washington Sentencing

Parallel Domestic Violence Protection Order and Criminal Proceedings in Washington



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