Opinion
No. 60647-6-I.
August 4, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-1-02818-4, Michael Hayden, J., entered August 24, 2007.
Affirmed by unpublished per curiam opinion.
Gerald Gratton appeals his conviction for escape in the first degree, claiming the trial court abused its discretion by admitting evidence of a prior conviction for escape in the second degree under Evidence Rule 404(b). To convict a defendant of escape in the first degree, the State must prove beyond a reasonable doubt that the defendant knowingly left custody without permission. Because Gratton's defense was that he did not knowingly leave King County's Work Education Release program, the trial court did not abuse its discretion in admitting evidence of Gratton's prior conviction for escape in the second degree. We affirm.
FACTS
On September 15, 2006, Gerald Gratton was convicted of conspiracy to possess cocaine. The court sentenced Gratton to nine months, but authorized his participation in King County's Work Education Release (WER) program. As part of the WER program, an inmate can request a pass to leave the facility for a specifically approved purpose. On January 20, 2007, Gratton's caseworker, Steve Kekoa Jaber, issued Gratton a pass to seek medical attention for pain in his knee and ankle at the emergency room of Harborview Medical Center (Harborview). Gratton left and did not return to the WER facility.
The State charged Gratton with escape in the first degree. Gratton pleaded not guilty and asserted a voluntary intoxication defense. Gratton claimed that he did not return to the WER program because he was "overpowered" by the amount of alcohol that he drank.
Before trial, the State moved to admit evidence under ER 404(b) of Gratton's prior conviction for escape in the second degree to show that Gratton knowingly left the WER program without permission. The State argued:
[I]f the defense is intending to argue some type of voluntary intoxication, or negate the knowledge element in any way, the State would seek to introduce the prior escape, which was an escape from work release, to show that the defendant did, in fact, know that his leaving and failing to return would result in leaving confinement without permission.
The court decided to admit the evidence of Gratton's prior conviction for escape in the second degree under ER 404(b), ruling that:
[B]eing under the influence of something still might not negate his knowledge element if, in fact, he'd already been convicted of the same thing.
One could be drunk and still know that they had been previously convicted of the same thing, if they didn't go back, they might be convicted again.
And they might be under the influence of a substantial drug and still be able to pierce through the fog to know that they're supposed to go back to jail if, in fact, they've been convicted of it once. At trial, WER caseworker Steve Kekoa Jaber and King County Corrections
Officers Thomas Nolan and Frank Martin testified on behalf of the State. Jaber testified that when Gratton was transferred to the WER program on October 20, 2006, Jaber met with Gratton to discuss the requirements and expectations of the program and the pass system, including the consequences of not returning to work release. Gratton also received copies of the rules and signed an escape acknowledgement form, stating that he understood the WER escape policy.
Officer Nolan testified that he checked Gratton out from the work release facility on January 20, 2007 at 2:00 p.m. Officer Nolan said that he tells every inmate leaving on a pass the exact time the inmate must return. Officer Nolan testified that when he checked Gratton out, Gratton did not express any confusion about his expected return time of 6:00 p.m.
Officer Martin testified that he was on duty on January 20 at 6:00 p.m. when Gratton was supposed to return to the WER facility. Officer Martin testified that Gratton called to say he would be late because he had not yet been seen by the medical staff. Officer Martin told Gratton that someone from Harborview needed to call and confirm the reason for Gratton's delay. No one from Harborview called. When Gratton still had not returned by 9:20 p.m., Officer Martin called Harborview and then reported Gratton's escape status.
Gratton told the jury that on his way to Harborview emergency room, he encountered an old friend, Sylvester Carter. Gratton said Carter offered him a ride to the hospital. Gratton got into Carter's car and the two began talking and drinking Crown Royal. When Gratton and Carter had drunk all of the Crown Royal, they drove to a liquor store to buy a fifth of Hennessy. Gratton testified that "something told me not to [drink], but I did anyway. . . ." Gratton said when he arrived at Harborview, there were a number of people waiting to be seen. Gratton decided to wait in Carter's car until the line got shorter. He and Carter continued to drink.
Gratton testified that he called Officer Martin to say he would be late. Gratton said that he did not turn himself in because "I didn't want to go back to jail . . . I felt bad and I felt guilty." He told the jury he was overpowered by alcohol, and he continued to drink for three days straight. Gratton also testified about his 2002 conviction for escape in the second degree. He said that after drinking beer at the Bishop Lewis work release program facility, he left. Gratton admitted that he knew he did not have permission to leave.
Gratton also admitted that Jaber explained the pass system to him. But Gratton said he did not recall what papers he signed, he did not read the forms, and Jaber did not read the forms to him. On cross examination, Gratton admitted that he knew there would be consequences if he did not return to work release on time, however, he denied knowing that if he came back more than an hour late, he would be on escape status. Gratton said that when he left Bishop Lewis in 2002, he had consumed 72 ounces of beer, but he knew leaving was not "the right thing to do." When asked if he knew that he was not supposed to be drinking on the night of January 20, Gratton replied, "I wasn't really thinking about it. . . ." It "wasn't on my mind at the time."
On redirect, Gratton said that when he left the WER facility on January 20, he did not take any personal items with him. He said that he had three or four duffel bags full of clothes and a gold necklace with sentimental value in his room.
As part of the jury instructions, the court instructed the jury on Gratton's voluntary intoxication defense,
No act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition. However, evidence of intoxication may be considered in determining whether the defendant acted with knowledge.
The court also gave an instruction limiting the jury's consideration of the ER 404(b) evidence of Gratton's prior conviction for escape in the second degree,
Evidence that the defendant has previously been convicted of Escape in the Second Degree is not evidence of the defendant's guilt. Such evidence may be considered by you in deciding whether the defendant had the knowledge that he was to return to work release and/or whether his failure to return would result in leaving work release without permission and for no other purpose.
The jury found Gratton guilty of escape in the first degree.
ANALYSIS
Gratton contends that the trial court abused its discretion by admitting evidence of his prior conviction for escape in the second degree under ER 404(b). Gratton argues the only relevance of the conviction was to show propensity, and the evidence was more prejudicial than probative.
ER 404(b) prohibits the admission of prior bad acts to show a defendant likely committed the charged crime. But the evidence may be admissible if relevant and necessary to prove an essential element of the crime. State v. White, 43 Wn. App. 580, 587, 718 P.2d 841 (1986). ER 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
To admit evidence of prior bad acts, the court must "(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect." State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002).
We review a decision to admit evidence for an abuse of discretion. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 16, 482 P.2d 775 (1971).
To convict Gratton of escape in the first degree, the State had to prove beyond a reasonable doubt that Gratton "knowingly escaped from custody or a detention facility" RCW 9A.76.110, and that Gratton knew his actions would result in leaving confinement without permission.
Jury instruction No. 8.
Gratton cites State v. Pogue, 104 Wn. App. 981, 17 P.3d 1272 (2001), to argue that the ER 404(b) evidence of his prior conviction for escape in the second degree was not relevant and was improperly admitted. Gratton's reliance on Pogue is misplaced. In Pogue, the defendant was convicted of possession of cocaine after the police found drugs in the car he was driving. Pogue testified at trial that the car was his sister's, he had never seen the drugs in the car, and the police might have planted the drugs. The trial court allowed the State to introduce evidence of Pogue's prior conviction for delivery of cocaine to rebut Pogue's testimony. This court reversed on the ground that "the evidence had no tendency to show that Pogue knew that there was cocaine in his sister's car" and was irrelevant except to show propensity under ER 404(b). Pogue, 104 Wn. App. at 986.
Here, unlike in Pogue, evidence of Gratton's prior conviction for escape in the second degree was relevant to rebut Gratton's defense that he was too drunk to know he was leaving the WER program without permission. Gratton testified that he did not intend to leave the WER program, but he was overpowered by drinking too much alcohol. Consequently, the trial court did not abuse its discretion by admitting the evidence of Gratton's prior escape conviction to rebut his defense.
Gratton cites State v. Acosta, 123 Wn. App. 424, 98 P.3d 503 (2004), and State v. Trickler, 106 Wn. App. 727, 25 P.3d 445 (2001), for the proposition that the similarity of prior bad acts to the current charge is particularly prejudicial. However, in Acosta, the prejudicial effect of the evidence outweighed the relevance because the allegations were unproven. Acosta, 123 Wn. App. at 434 (the arrests are unproved allegations and we have no way to evaluate whether the underlying act, or the intent behind the act ever occurred). Here, unlike in Acosta, there is no dispute that Gratton had a prior conviction for escape. And in Trickler, the trial court did not engage in the balancing test before admitting the evidence of Trickler's prior bad acts. Trickler, 106 Wn. App. at 733. (Mr. Trickler, however, contends that the balancing test, the fourth requirement, was not met, which resulted in reversible error. We agree).
In addition, Gratton cannot show he was prejudiced by admission of the ER 404(b) evidence. The admission of evidence is not prejudicial unless within reasonable probabilities, the outcome of the trial would have been materially affected had the evidence been excluded. State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981).
There was strong evidence that Gratton knew he was leaving confinement without permission. During his testimony at trial, Gratton admitted that he did not turn himself in because he did not want to go back to jail. Gratton also testified that he understood the pass system, he knew his pass was for the limited purpose of seeking medical attention at Harborview, and he knew drinking was against the rules. Jaber testified that Gratton signed an escape acknowledgment form when he entered the WER program, and explained the form and the rules of the program. Officer Nolan testified that Gratton knew what time to return. Officer Martin testified that Gratton called to say that he would be late. Even without the admission of Gratton's prior conviction for escape, the result of the trial would have been the same. And any prejudice to Gratton from the admission of the ER 404(b) evidence was also diminished by the court's instruction that limited the jury's consideration of the evidence to proving knowledge. State v. Walker, 75 Wn. App. 101, 110, 879 P.2d 957 (1994) (absent evidence to the contrary, we presume that a jury follows its instructions).
Gratton contends in his pro se statement of additional grounds that he should have been charged with escape in the third degree, instead of escape in the first degree. However, the court instructed the jury on both first and third degree escape, and the jury found Gratton guilty of escape in the first degree.
Citing State v. Dorn, 93 Wn. App. 535, 969 P.2d 129 (1999) and State v. Danforth, 97 Wn.2d 255, 643 P.2d 882 (1982), Gratton also contends that the State cannot charge work release inmates under RCW 9A.76.110. But the statutes addressed in Dorn and Danforth, former RCW 72.66.060 (failure to return from furlough) and former RCW 72.65.070 (failure to return from work release), were repealed by the Washington State Legislature Laws of 2001, ch. 264, § 7.
We affirm.