Pursuant to Washington ER 404(b), evidence of other crimes, wrongs, or acts may not be admitted to prove the defendant’s character to show that he acted in conformity with his character. Evidence of prior acts can be admissible for certain other reasons, including motive, opportunity, and intent. Washington courts have also allowed such evidence to be admitted under a “res gestae” or “same transaction” exception, allowing the evidence “if it is so connected in time, place circumstances, or means employed that proof of such other misconduct is necessary for a complete description of the crime charged, or constitutes proof of the history of the crime charged.” State v. Schaffer. The purpose is to allow the jury to see a complete picture.
A court can only admit evidence under an exception to ER 404(b) if it first finds by a preponderance of the evidence that the misconduct occurred, determines that the evidence is relevant to a material issue, puts the purpose for the admission of the evidence into the record, and balances the evidence’s probative value against the risk of unfair prejudice. The court must conduct the analysis on the record.
A Washington appeals court recently reviewed a case in which the trial court admitted some evidence of prior incidents. The defendant was charged with residential burglary, fourth-degree assault, and interfering with domestic violence reporting, based on allegations that he had entered his wife’s residence, assaulted her, and prevented her from calling the police. He was convicted of fourth-degree assault and residential burglary. He appealed, arguing that the trial court abused its discretion by admitting evidence about prior incidents.
The trial court had allowed evidence of prior incidents to be admitted, finding that they were res gestae and relevant to the assault element of fear.
The defendant argued the court abused its discretion because it failed to balance the probative and prejudicial values of the incidents on the record. The appeals court noted, however, that such a failure is harmless if the appeals court can determine that compliance would not have changed the trial court’s decision to allow the evidence.
The appeals court then found that balancing the values on the record would not have changed the trial court’s decision. The court did exclude evidence of some incidents, finding that they were either more prejudicial than probative or that they were too remote in time. The appeals court found that these decisions showed that the trial court was aware of the requirement to balance the probative and prejudicial values. The record also showed that the court had concluded that the prior incidents were admissible for multiple purposes and therefore had substantial probative value.
The appeals court also found that the prior incidents provided information regarding a disputed issue in the burglary charge. The defendant testified the parties had an agreement not to enter each other’s residences when the other was not home, but the wife had testified he was not allowed to enter the family residence without her permission. The appeals court also found that a 911 call in a previous incident supported an inference that the defendant threw and damaged the phones in the charged incident to prevent the wife from calling 911. During the 911 call in the previous incident, the wife stated that her husband had broken two phones because he didn’t want her to call 911. She stated that she picked up the phone to make the call, and he grabbed it away from her and threw it. She also said he picked up the other phone and pushed her down.
The appeals court found additional probative value in an incident that occurred at the husband’s residence. The wife said she had obtained permission to enter his residence to pick something up. There was evidence that she found a shotgun, shells, wedding photos, and a note with her name and “last will and testament” on his bed. The wife took the gun from the husband’s residence back to her own. She stated she was concerned her husband might commit suicide. The appeals court found that the items, which appeared to be left for the wife to find, corroborated her statement she had permission to enter the residence. The appeals court also found that this evidence showed the defendant’s emotional state and indicated he was “considering drastic action.” The evidence was therefore relevant to the wife’s fear, which is an element of the assault charge. The appeals court also found that the evidence was res gestae because it explained why the wife had the husband’s gun, which he entered her home to retrieve in the charged incident.
The appeals court found that any error in failing to balance the values of the evidence on the record was harmless because it would not have changed the court’s decision to admit the evidence.
Although the court in this case admitted evidence of some prior incidents, it did not allow evidence of others. A defendant in a criminal domestic violence case is entitled to legal representation. The Washington criminal defense attorneys at Blair & Kim, PLLC, are experienced in cases related to domestic violence. Call us at (206) 622-6562.
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