NIKKI M. WILSON, an individual; PAMELA PETERSON, an individual, Appellants,
v.
LAWRENCE FRYE, GUY CASEY, as individuals, and GIL CORPORATION d/b/a FRIENDLY DUCK RESTAURANT, Respondents.

No. 36088-8-II.

Court of Appeals of Washington, Division Two.

February 5, 2004.

 

        Nikki Wilson and Pamela Peterson were involved in a bar fight with Lawrence Frye and Guy Casey at the Friendly Duck Restaurant (Restaurant) in Tacoma, Washington. Wilson and Peterson sued Frye, Casey, and the Restaurant, but the jury found by special verdict that (1) Casey's and Frye's intentional acts did not cause Wilson's and Peterson's injuries, (2) Wilson and Peterson had been intoxicated, (3) their intoxication was the proximate cause of their injuries, and (4) they were more than 50 percent at fault for their own injuries.

        On appeal, Wilson and Peterson argue that they are entitled to a new trial and that the trial court committed reversible error by (1) denying their motion to compel discovery, (2)

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admitting evidence of other bar fights in which they were involved, and (3) denying their right to a fair trial by admitting "edited" security footage of the fight. We affirm.

FACTS

        On the evening of February 5, 2004, after consuming copious amounts of alcohol, Wilson and Peterson got into a fight with Frye and Casey at the Restaurant. The parties dispute how the fight began. The Restaurant's owner, Dong Kim, preserved a two-minute segment of the security camera tape recording of the altercation. This footage shows Frye standing with his arms outstretched at his side, Wilson charging him, and the two falling backwards over a table and down a short flight of stairs into a hallway that is out of the security camera range. Peterson is shown jumping down in the hallway and appears to be landing with Wilson on top of Frye. There is no footage of the hallway where the fight apparently continued.

        According to the witnesses, Frye was on his back in the hallway and the two women were on top of him. When Richard Stotts, Wilson's former husband, approached the wrestling trio, Casey assumed that he was going to join the fight. Casey grabbed Stotts by the jacket and pulled him away from the fray. Another bar patron then pulled Frye out from beneath the women. Frye did not continue the altercation; instead, he stood up, "turn[ed] around[,] and . . . walked out" of the Restaurant. 3 Report of Proceedings (RP) at 444.

        Wilson and Peterson sued Frye, Casey, and the Restaurant, seeking damages for injuries they claimed to have received in the fight.1 At the time, Peterson claimed no injuries. But

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Wilson was treated at the scene and then taken to two different hospitals to treat a broken jaw. The jury found for the respondents and Wilson and Peterson appeal.2

ANALYSIS

        Our Supreme Court long ago held that an objection to the admission of evidence will not be considered on appeal if it is not timely made at trial. Seth v. Dep't of Labor & Indus., 21 Wn.2d 691, 693, 152 P.2d 976 (1944).

        "[T]o preserve the question for appellate review, generally a party must object to improper questions and inadmissible evidence at his earliest opportunity. When a question is asked by opposing counsel, a party may not remain silent, speculate upon an answer being favorable, and, when disappointed, make a motion to strike out the answer. Where, however, there is no opportunity to interpose an objection, or if it is not apparent from the question propounded that the response thereto will be inadmissible, a motion to strike is necessary and sufficient."

        Seth, 21 Wn.2d at 693 (quoting 8 Bancroft's Code Practice & Remedies § 6446, at 8496 (1927)).

        Here, Wilson and Peterson argue that the trial court committed reversible error by (1) denying their motion to compel discovery, (2) admitting evidence of other bar fights in which the two were involved, and (3) admitting "edited" security footage of the fight. But we cannot decide these issues. The record provided is insufficient to determine whether Wilson and Peterson made a motion to compel discovery and, if so, the basis for the trial court's ruling on the matter. Moreover, the record provided reveals that Wilson and Peterson did not make the objections necessary to preserve these issues for appeal.

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        Admissibility of the Security Camera Footage

        A. Motion to Compel Discovery

        For the first time on appeal, Wilson and Peterson argue that the Restaurant failed to comply with the trial court's order compelling hiring of a computer "forensics expert" to attempt to recover portions of the security footage of events immediately before and after the fight from the hard drive of its surveillance computer.

        But Wilson and Peterson have not provided us with a copy of the trial court's order or a transcript of a hearing on a motion to compel discovery. As appellants, Wilson and Peterson have the burden to perfect the record so that we have before us all information relevant to the issues presented. RAP 9.2(b); Dash Point Vill. Assocs. v. Exxon Corp., 86 Wn. App. 596, 612, 937 P.2d 1148, 971 P.2d 57 (1997). Moreover, at trial, Wilson and Peterson failed to preserve their challenge for appeal. They did not object to the security footage documenting the fight on the ground that the Restaurant had violated the court's discovery order. DeHaven v. Gant, 42 Wn. App. 666, 669, 713 P.2d 149 (citing State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986)), review denied, 105 Wn.2d 1015 (1986).

        B. Spoliation of Evidence

        Also, for the first time on appeal, Wilson and Peterson contend that the trial court erred when it admitted the Restaurant's "edited" security footage documenting the fight, arguing that the public policy against intentional spoliation of evidence "requires" the exclusion of the "edited" footage. In addition, they baldly assert that the conduct of the Restaurant owner, Kim, in preserving only two minutes of footage showing the altercation itself was willful and in bad

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faith because the "missing" footage "clearly" provides the best evidence of how the altercation started.

        But the record before us reveals that Wilson and Peterson showed the security footage to the jury in their case-in-chief and withdrew proposed jury instructions regarding spoliation of evidence. Thereby they waived any objection and failed to preserve the issue for our review. Eagle Group, Inc. v. Pullen, 114 Wn. App. 409, 416-17, 58 P.3d 292 (2002), review denied, 149 Wn.2d 1034 (2003).

        Wilson and Peterson argue that they should be excused from issue preservation requirements because they chose the tactic of introducing the evidence in an attempt to minimize the negative impact of having the defense introduce it first. In some instances, a party prejudiced by an evidentiary ruling who then introduces the adverse evidence in an effort to mitigate its prejudicial effect has not been precluded from obtaining review of the ruling. See State v. Whelchel, 115 Wn.2d 708, 727-28, 801 P.2d 948 (1990) (it is not invited error for defendant to refer in opening remarks to evidence expected to be admitted at trial under erroneous pretrial ruling), aff'd, 232 F.3d 1197 (9th Cir. 2000); Dickerson v. Chadwell, Inc., 62 Wn. App. 426, 430-31, 814 P.2d 687 (1991), review denied, 118 Wn.2d 1011 (1992);3Garcia v. Providence Med. Ctr., 60 Wn. App. 635, 641, 806 P.2d 766 (party may try to minimize adverse effect of evidentiary ruling by introducing the damaging testimony without waiving review of issue), review denied, 117 Wn.2d 1015 (1991).

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        But when a trial court's ruling is tentative, error is not preserved for appeal unless the party objects to admission of the evidence when it is offered, allowing the trial court an opportunity to reconsider its prior ruling. Eagle Group, 114 Wn. App. at 416-17. We have no record of any pretrial rulings concerning the admissibility of the security footage. Thus, to preserve their challenge to the admission of the security camera footage, Wilson and Peterson were required to object to its admissibility when the tape was offered. They did not do so and instead decided to introduce the evidence in their case-in-chief.

        Although they withdrew their proposed spoliation instruction and removed the issue from the jury's consideration, Wilson and Peterson attempt to reassert their argument, on appeal, that Kim's failure to preserve the security camera footage before and after the altercation resulted in intentional spoliation and entitle them to a new trial. But appellants have waived this claim. A party cannot set up an error below and then complain of it on appeal. Casper v. Esteb Enters., Inc., 119 Wn. App. 759, 771, 82 P.3d 1223 (2004) (quoting Lavigne v. Chase, Haskell, Hayes & Kalamon, P.S., 112 Wn. App. 677, 681, 50 P.3d 306 (2002)). Moreover, even if Wilson and Peterson preserved this issue for appeal, the record does not support a spoliation claim.

        Spoliation is the intentional destruction of evidence. Black's Law Dictionary 1437 (8th ed. 2004). Washington courts treat spoliation as an evidentiary matter. To remedy spoliation, a court may apply a rebuttable presumption that shifts the burden of proof to the party who destroys or alters important evidence. Marshall v. Bally's Pacwest, Inc., 94 Wn. App. 372,

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381, 972 P.2d 475 (1999). "Washington Practice concludes that spoliation is `a term of art, referring to the legal conclusion that a party's destruction of evidence was both willful and improper." Homeworks Constr., Inc. v. Wells, 133 Wn. App. 892, 900, 138 P.3d 654 (2006) (citing Karl B. Tegland, 5 Washington Practice: Evidence Law & Practice, § 402.6, at 37 (Suppl. 2005)).

        When properly preserved, we review the trial court's determination regarding spoliation for an abuse of discretion. Henderson v. Tyrrell, 80 Wn. App. 592, 604, 910 P.2d 522 (1996). A party's actions in destroying evidence are improper, constituting spoliation, where the party has a duty to preserve the evidence in the first place. Homeworks, 133 Wn. App. at 900.

        To be culpable for spoliation a party must do more than disregard the importance of the evidence; it must breach a duty to preserve the evidence. Homeworks, 133 Wn. App. at 900; see also Henderson, 80 Wn. App. at 610. If the destroying party had a duty to preserve evidence, culpability turns on whether the party acted in bad faith or whether there is an innocent explanation for the destruction of the evidence. Henderson, 80 Wn. App. at 609. Here, there is no showing that Kim had a duty to preserve more than two minutes of the security footage and there is no evidence that he acted in bad faith by deciding to preserve only the two minutes which he testified showed the beginning of the physical altercation.

        At most, Kim failed to take steps to preserve potential evidence. In addition, Wilson and Peterson had alternative sources to establish the information they asserted was contained on the

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missing security footage. And the trial court did not prohibit the parties from questioning witnesses about the activities in the Restaurant's bar prior to and after the fight occurred.4 Relying on RCW 9A.72.150 (tampering with physical evidence) and RCW 9.69.100 (duty of witness of violent offense to report it), Wilson and Peterson argue that Kim had a duty to preserve a greater portion of the tape under the state's public policy of promoting the preservation of evidence of violent offenses against the public.

        As discussed above, a party seeking a spoliation inference must show that the adverse party breached a duty in bad faith by not preserving the evidence. See Henderson, 80 Wn. App. at 609 (bad faith requirement derives from the evidentiary inference spoliation creates; unless there was bad faith, there is no basis for spoliation) (quoting 2 John W. Strong, McCormick on Evidence § 265, at 191 (4th ed. 1992)). Wilson and Peterson have not shown that Kim acted in bad faith, that he lacked an innocent explanation for destroying evidence, or that his explanation for why he preserved only that portion showing the physical altercation was not credible.

        Kim explained his reasons for saving only the footage showing the actual fight. He explained that, after the manager told him about the fight, he immediately viewed the security footage and saved the footage he thought the police may want to see before the system

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automatically recorded over it. The record does not support Wilson and Peterson's assertion that Kim decided to preserve only the two minutes of the footage that would be advantageous to him in any potential lawsuit. Also, the record does not support Wilson and Peterson's claim that admission of the security camera footage violated public policy and entitles them to a new trial. Evidence of Other Altercations

        Wilson and Peterson also challenge the trial court's decision to admit evidence of other fights they were involved in prior to and following the one at the Restaurant. They argue that, by admitting this testimony, the trial court allowed the jury to speculate about the cause of their injuries and discredit their credibility. But because evidence of other fights was admissible, we disagree.

        Relevant evidence is evidence having a tendency to make a consequential fact more or less probable. ER 401. Any evidence that tends to establish a party's theory or disproves the testimony of an adversary is also relevant. Hayes v. Wieber Enters., Inc., 105 Wn. App. 611, 617, 20 P.3d 496 (2001). Relevant evidence is, generally, admissible. Hayes, 105 Wn. App. at 617. Relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice." ER 403. While nearly all evidence prejudices one side or the other, unfairly prejudicial evidence is evidence that is "likely to trigger an emotional response rather than a rational decision among the jurors" and may be excluded. Hayes, 105 Wn. App. at 618 (citing Carson v. Fine, 123 Wn.2d 206, 223-24, 867 P.2d 610 (1994)). The burden of showing prejudice is on the party seeking to exclude the evidence. Hayes, 105 Wn. App. at 618 (citing Carson, 123 Wn.2d at 225).

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        A trial court's admission or exclusion of testimony is discretionary and we will not overturn it on appeal absent a manifest abuse of discretion. Reese v. Stroh, 128 Wn.2d 300, 310, 907 P.2d 282 (1995); Hoglund v. Meeks, 139 Wn. App. 854, 875, 170 P.3d 37 (2007). Abuse of discretion occurs when the trial court's decision rests on untenable grounds or when no reasonable judge would have reached the same conclusion. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006); Byerly v. Madsen, 41 Wn. App. 495, 499, 704 P.2d 1236, review denied, 104 Wn.2d 1021 (1985). To preserve a challenge to a trial court's evidentiary ruling, a proper objection must be made at trial. Failure to object precludes review of the issue on appeal. Wilburn v. Pioneer Mut. Life Ins. Co., 8 Wn. App. 616, 618-19, 508 P.2d 632 (1973) (quoting Symes v. Teagle, 67 Wn.2d 867, 873, 410 P.2d 594 (1966)).

        One defense theory was that Wilson's and Peterson's jaw injuries were inflicted during other fights. To prove that theory, defense counsel asked Peterson whether she had been in any altercations since the fight at the Restaurant. Peterson's counsel objected after Peterson had answered "yes."

        Following the objection, defense counsel argued that his question was relevant to the issue of damages because Peterson complained of an ongoing injury and she had a propensity to get into fights. The trial court ruled that when Peterson answered the question, she opened the door to permit defense counsel to explore whether she had a propensity to get into fights. Peterson's counsel withdrew his objection by noting that "[i]f [defense counsel] can establish a propensity, please [continue]." 2 RP at 243. In response, Peterson testified that she had only engaged in verbal disagreements with no physical touching.

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        Peterson's counsel withdrew his objection to the question of Peterson's having been involved in altercations other than that at the Restaurant and, although the inquiry for purposes of proving propensity was arguably improper, any objection to the question was waived. Bellevue Sch. Dist. No. 405 v. Lee, 70 Wn.2d 947, 950, 425 P.2d 902 (1967); Casper, 119 Wn. App. at 771 (quoting Lavigne, 112 Wn. App. at 681). But see Dickerson, 62 Wn. App. at 432 (evidence of character is admissible in a civil case only if the person's character is actually in issue) (quoting R. Aronson, Evidence in Washington 404-2 (1989)). Additionally, we note that Peterson's response did not prejudice her case and any error in allowing the question was harmless.

        Likewise, during cross-examination, defense counsel asked Wilson whether she had been in any altercations with men prior to the fight at the Restaurant. Counsel objected. The trial court overruled the objection again, allowing counsel to ask questions showing Wilson's propensity to get into fights.

        Defense counsel then asked Wilson whether she had been in any altercations after the night of the fight at the Restaurant. Again, Wilson's counsel objected. Outside the presence of the jury, the Restaurant's defense counsel explained that there were possible intervening events requiring that he ask about subsequent altercations to eliminate them as the partial cause of her jaw injury.

        The trial court ruled that the defense had a right to bring out mitigating factors if they were germane, and it suggested to defense counsel that the proper question to ask was, "have you

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been in any altercations since this incident where your jaw was injured." 3 RP at 368. Wilson's counsel agreed and stated that he would "have [no] problems" with that question. 3 RP at 368.

        Following the trial court's suggestion, defense counsel asked Wilson, "[h]ave you been in any altercations since the night at the Friendly Duck that could have caused further injury to your jaw?" 3 RP at 370. Wilson replied, "[n]o," and denied that her prior altercations had escalated to any physical touching.5 3 RP at 370. Wilson's counsel made no further objection to any of the follow-up questions and cannot now do so on appeal. Wilburn, 8 Wn. App. at 618-19.

        Wilson next argues that impeachment evidence related to her post-Restaurant assault on a paramedic was more prejudicial than probative and, thus, inadmissible under ER 404. See ER 403. Wilson further contends that the defense used the evidence of her prior bad acts solely for the purpose of impugning her character and discrediting her in the eyes of the jury. We disagree.

        Defense counsel sought to impeach Wilson by introducing a declaration for determination of probable cause which alleged that Wilson assaulted a paramedic two years after the bar fight at issue. Wilson denied ever physically attacking the paramedic. Arguing that the document was extrinsic evidence, Wilson's counsel objected to its introduction. The trial court held that the defense was permitted to use the document for impeachment purposes. We review a trial court's evidentiary rulings for an abuse of discretion. Cox v. Spangler, 141 Wn.2d 431,

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439, 5 P.3d 1265, 22 P.3d 791 (2000) (quoting Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662-63, 935 P.2d 555 (1997)). Given that Wilson was seeking damages for a broken jaw, how often and when her jaw had been injured was relevant to the defendants' level of responsibility for her injuries.

        Moreover, because she had testified that she had not been in any physical confrontations after the Restaurant bar fight that could have caused further injury to her jaw, this inquiry was proper impeachment. Tamburello v. Dep't of Labor & Indus., 14 Wn. App. 827, 828-29, 545 P.2d 570 (1976). Wilson has not demonstrated that the trial court's decision to allow the questions was "`manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'" Mayer, 156 Wn.2d at 684 (quoting Associated Mortgage Investors v. G.P. Kent Constr. Co., 15 Wn. App. 223, 229, 548 P.2d 558 (1976)).

        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.

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Notes:

1. At trial, Peterson claimed that her jaw "pops periodically. . . . Sometimes it's painful." 2 RP at 216.

2. Wilson and Peterson, represented by the same counsel, filed their appeal together. Only the Restaurant filed a responsive brief. Frye and Casey did not file any responses to the appeal and, per commissioner's order, did not participate in oral argument.

3. We agree with Division One of this court limiting "the no-waiver rule" "to those cases in which the trial court has made a final and unequivocal ruling on the motion in limine, and the record contains no indication that the party in whose favor the trial court ruled subsequently decided not to introduce the disputed evidence." Dickerson, 62 Wn. App. at 431.

4. We question the relevance of the footage. Wilson and Peterson suggest that it would show Frye initiating the fight and support their assertions about how the fight started. But this speculation is unsupported by witness testimony. The preserved portion of the footage shows that Wilson charged at Frye first and Peterson joined in a few seconds later. Wilson charged so aggressively that she caused Frye to fall backwards over a table and fall to the ground down a short flight of stairs with both Wilson and Peterson on top of him. Furthermore, there was no footage possible of the hallway where the fight ended because it was outside the camera range.

5. When Wilson was admitted into Tacoma General Hospital on the night of the fight, she told the treating staff that she had been assaulted in a park and punched in the jaw. Later, when she was transferred to Harborview Hospital, Wilson told the staff that she had gotten into a fight with another woman. Whether these other assaults had occurred at other times is unclear. Wilson could not explain the discrepancy between the hospital paperwork and her statement to police that Frye had assaulted her.