July 11,2013
I n the Office ofthe Clerk oFCourt
WA State Court of Appeals, Division 11
11
I THE COURT OF APPEALS OF THE STATE OF WASHINGTON
N
DIVISION THREE
STATE OF WASHINGTON, 1
1 No. 30034-0-111
Respondent, 1
1
v. 1
1
DON DOUGLAS LOVELL, 1 UNPUHLISHED OPINION
1
Appellant. 1
SIDDOWAY, -Don
J. Lovell, having been charged with five crimes including the
second degree rape of his girl friend, was convicted and sentenced for only the crime of
second degree assault. He appeals that conviction, claiming the court violated his
constitutional rights when it sustained an objection to expert testimony that the girl friend
was an alcoholic and vulnerable to blackouts. The evidence was irrelevant and was
properly excluded. For that reason and because Mr. Lovell raises no viable challenge in
his statement of additional grounds, we affinn.
FACTS AND PROCEDURAL BACKGROUND
At around 4 a.m. one morning in August 2009, Walla Walla police officers
responded to a 91 1 call reporting a domestic violence incident at an address on East
Chestnut Road. When they arrived, the victim, P.M., hesitantly approached them from
No. 30034-0-111
State v. Lovell
the backyard of an adjacent home, uncertain they were the police. One of the responding
officers, Brett Barberich, would later describe her as acting "very frightened" and
i~nmediatelynoticed bruising around her left eye and the collarbone area. Report of
Proceedings (RP) at 306. Ms. M. told the officers that her boyfriend, Don Lovell, had
beaten her earlier in the evening and that she waited until he fell asleep to leave her home
and make a 91 1 call from the neighbors' home. The officers determined that a valid
restraining order was in place restraining Mr. Lovell from contact with Ms. M.
The officers could see that Ms. M. was very intoxicated and upon locating Mr.
Lovell in the bedroom of her home, found that he was very intoxicated as well. Whcn
asked about what had happened, Mr. Lovell claimed that Ms. M. "went crazy and
assaulted him," hitting him in the face and biting him, in response to which he defended
himself. RP at 323. He pointed out marks on his torso that appeared to the officers to be
consistent with bite marks. Officer Steven Slawson photographed them. The officers
nonetheless concluded from Ms. M.'s Inore extensive injuries that Mr. Lovell was the
primary aggressor.
Having made that determination, Officer Barberich transported Mr. Lovell to the
county jail. Mr. 1,ovell was cooperative. Officer Slawson stayed behind and took
photographs ofMs. M.
After the officers completed their investigative work, Ms. M. was taken to the
hospital by paramedics. Emergency room records reflect that Ms. M.'s chief complaint
No. 30034-0-111
State v. Lovell
on arrival was facial bruises and lacerations to her left posterior thigh.' The hospital
diagnosed Ms. M. with a severe concussion.
In the morning, Ms. M. was interviewed twice by Detective Tracy Klem. Ms. M.
told the detective that she had picked up Mr. Lovell the prior evening and driven him to
her home [or a dinner she had prepared. She told the detective she had been trying to get
the restraining order dropped because she and Mr. Lovell wanted to get back together. It
was after dinner that their reunion went badly awry and Mr. Lovell beat her up, including
by strangling her.
The State originally charged Mr. Lovell with violating a domestic violence (DV)
protection order, a class C felony. Approximately 10 days following the incident it
amended the information to charge him with two additional crimes against Ms. M.:
assault in the second degree-DV, for what it alleged was his strangulation of her, and
harassment-DV, for allegedly threatening to lcill her. It also charged Mr. Lovell at that
time with a felony harassment of Jason Spencer, an off-and-on friend of Mr. Lovell's,
based on Ms. M.'s report that Mr. Lovell threatened to kill Mr. Spencer in the course of
his August 24 assault of her.
1
Ms. M. later testified that the cut on her thigh was an accident caused when Mr.
Lovell threw a glass at a coffee table early in the evening. A piece of the glass had struck
her. He apologized and had assisted hcr in bandaging it.
No. 30034-0-111
State v. Lovell
On September 3, Ms. M. had a doctor's appointment with her primary physician,
Dr. Lauri Larson. Ms. M. had seen Dr. Idarsonearlier in the summer complaining of
anxiety and the doctor had been treating Ms. M. with antidepressants. Ms. M. made the
appointment for the 3rd to discuss the assault. RP at 391. Shc told Dr. Larson about her
injuries. The doctor asked if sex had occurred that night; Ms. M. said yes, sex had
occurred. RP at 286. She told the doctor that it was vaginal intercourse and it hurt
terribly. RP at 393. Dr. Lars011then conducted a pelvic examination and observed
lacerations that the doctor attributed to forcible intercourse. RP at 399-400.
Five days later, on September 8, Ms. M. called Detective Iclem and told hirn for
the first tilnc that she had been raped by Mr. 1,ovell during the course of the assault. The
detective asked her to come in to the police department and speak with him, which she
did on September 10. In Ms. M.'s later interviews by Detective Klc~n, told him Mr.
she
Lovell's assault had begun when she rebuffed his efforts to initiate sexual intercourse.
She said Mr. Lovell responded by overpowering her efforts to resist and raping her.
Based on this additional information, the State amended its information a third time, in
January 201 1, charging Mr. Lovell with four crimes against Ms. M.: (1) assault in
violation of a protection order, (2) assault in the second degree for strangulation, (3)
felony harassment domestic violence, and (4) rape in the second degree. It carried
forward the charge of the felony harassment of Jason Spencer.
No. 30034-0-117
State v. Lovell
The jury trial took place in April 201 1. Evidence presented during the four-day
trial illcluded considerable evidence of Mr. Lovell's and Ms. M.'s heavy drinking
throughout their teinpestuous relationship, including their drinking on the night of the
assault. In addition to testitjling that Mr. Lovell overpowered and raped her, Ms. M.
testified that he demandcd that she admit to having an affair with his friend, Mr. Spencer,
which she refused to do. She testified that Mr. Lovell then threatened to lcill her, lcill Mr.
Spencer, and l