Opinion
No. 25781-5-II consolidated with 25800-5-II.
Filed: September 28, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Clark County, No. 99-8-01524-5, Hon. Ronald C. Wilkinson, March 24, 2000, Judgment or order under review.
Counsel for Appellant(s), Darcy J. Scholts, Attorney At Law, 712 W Evergreen Blvd, Vancouver, WA 98660.
Counsel for Respondent(s), Arthur D. Curtis, Clark Co Prosecuting Attorney, P O Box 5000, Vancouver, WA 98668.
Stepbrothers Dexter Jacobson and Jason Morgan, both juveniles, appeal their convictions of first degree malicious mischief. At a joint trial, the court found them guilty of knowingly and maliciously damaging two vehicles. In these consolidated appeals, they argue that the trial court erred by admitting, over defense objection, evidence that Morgan previously harassed the owner of one of the damaged vehicles. Finding that the challenged evidence was admissible to show motive under ER 404(b), we affirm.
Facts
On October 31, 1999, Jason Congdon was moving out of the Brentwood Apartments. He made 12 to 14 trips between his car and his apartment throughout the evening, loading his car with furniture and other belongings. His car was parked a few spaces from Barbara Seifert's truck, a 1988 GMC Jimmy. Dennis Nelson's car was parked next to Seifert's truck. Approximately 20 other cars were parked in the same row.
The trial court entered identical findings and conclusion in both cases.
The clerk's papers in Jacobson's record, No. 25781-5, will be referenced unless otherwise indicated.
Sometime after 5:00 p.m., Congdon noticed Morgan and Jacobson standing around in the parking area. He recognized Morgan from prior contacts around the complex but had not previously seen Jacobson. Other people, including Halloween trick-or-treaters, were walking in the area.
At approximately 6:00 p.m., Congdon saw Morgan and Jacobson standing about 15 feet from Seifert's truck. No one else was in the area at that time.
Between 6:30 and 7:00 p.m., en route to his car, Congdon heard a 'loud bash,' which sounded like a car window being smashed. RP at 15-16. He heard 'three more bashes.' RP at 16-17. Congdon put down the item he was carrying and ran toward his car. He saw Jacobson and Morgan running in opposite directions away from the area. No one else was in the vicinity.
Congdon found his car undamaged but saw that all four windows of Seifert's truck were broken. The passenger side window of Nelson's car was also shattered. Condon reported the incident to the police and gave them Morgan's name.
Vancouver Police Officer Kathy Peninger called and spoke with Morgan at his home later that night. He denied being at the Brentwood Apartments and stated he spent all evening with his stepfather and stepbrother, Jacobson. Morgan said they had been 'out' but would not elaborate on their whereabouts. RP at 79. Then Peninger spoke with Jacobson who also told her 'the exact same story.' RP at 79.
At the fact-finding hearing, Congdon, Seifert, Nelson, and Peninger testified to the facts as set out above.
The State also called as witnesses Shawna and Jeremy Batten. They testified that, while trick-or-treating, they saw Morgan and Jacobson at the Brentwood Apartments sometime between 7:00 and 7:30 p.m. Jeremy asked them what they were doing there and Morgan replied, "we're just waiting for our mom." RP at 116.
Over defense objection, Seifert testified that when she learned about the damage to her truck she immediately believed that Morgan was responsible because he and his family members had been 'harassing [her] for several weeks for an incident that was going on with another member of their family.' RP at 56. The court ruled that Seifert could testify to what happened in the past to establish motive. When Seifert proceeded to explain the harassing behavior, defense objected on the grounds of relevance and lack of foundation. The court overruled this objection. Seifert named the family members who had been harassing her: 'Matt, Amanda, Kiley, Gail, Jake, Dexter, Kiley's boyfriend Brian, the little sister, Amber.' RP at 58. She said the harassment began towards the end of September and described Morgan's behavior on one occasion:
The court stated: 'Well, this being a judge-tried case, I'll go ahead and hear the evidence and consider whether it is relevant or not without a pretrial hearing.' RP at 57.
[Morgan] would call me a fucking bitch and a lying cunt. And he did it right in front of the building to where I had to have maintenance walk me out to the car on one occasion because I didn't feel safe walking out to my own car.
RP at 58.
On other occasions he would stare and do 'dumb little kid things.' RP at 59. When asked about Jacobson, she said she did not have any contact with him.
The court found that Jacobson and Morgan had a motive to damage Seifert's truck. It concluded that both knowingly and maliciously caused damage in excess of $1500 to Seifert's and Nelson's vehicles, and found them guilty of first degree malicious mischief as charged.
Analysis
On appeal, Morgan and Jacobson argue that the trial court erred under ER 404(b) in allowing Seifert to testify about the prior harassment.
ER 404(b) forbids evidence of prior acts that tend to prove a defendant's propensity to commit a crime, but allows its admission for other limited purposes:
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.
ER 404(b).
The State must prove acts offered under ER 404(b) by a preponderance of the evidence. State v. Tharp, 96 Wn.2d 591, 594, 637 P.2d 961 (1981).
To determine whether evidence is admissible under ER 404(b), the trial court must engage in a three-part analysis. State v. Saltarelli, 98 Wn.2d 358, 362-63, 655 P.2d 697 (1982). First, the court must identify the purpose for which the evidence is to be admitted. Second, the evidence must tend to make the existence of the identified fact more or less probable. ER 401; Saltarelli, 98 Wn.2d at 363. Third, the court must, on the record, balance the probative value of the evidence against its prejudicial effect. State v. Wade, 138 Wn.2d 460, 979 P.2d 850, 852, opinion withdrawn and superseded by, 98 Wn. App. 328 (1999); Saltarelli, 98 Wn.2d at 363.
Here, the court admitted the challenged evidence to show motive. Morgan and Jacobson do not dispute the logical relevancy of prior harassment to show Morgan's motive to damage Seifert's truck. Verbally harassing Seifert with unsavory name calling, causing her to fear for her safety, was probative evidence of his hostility and ill will towards her. See State v. Powell, 126 Wn.2d 244, 260, 893 P.2d 615 (1995) (previous quarrels and ill-feeling and prior threats show motive or malice). And, contrary to Jacobson's assertion, Morgan's verbal harassment was also relevant to show Jacobson's motive given that they are stepbrothers and were together all evening. Under these circumstances, a rational trier of fact could reasonably infer that Jacobson shared Morgan's ill feelings toward Seifert and, together, they targeted her truck with malice.
We next address their argument that the court did not perform the requisite balancing test, weighing the probative value against its prejudicial effect. Though it is error for the trial court not to articulate its balancing process, such error is harmless when the record as a whole is sufficient to permit appellate review. State v. Binkin, 79 Wn. App. 284, 291, 902 P.2d 673 (1995). Here, the record is adequate for our review and, thus, we engage in the balancing process that the trial court should have conducted. Binkin, 79 Wn. App. at 291.
Contrary to Morgan's and Jacobson's assertion, it was not 'remote in time' that the verbal harassment occurred one month before the damage to Seifert's truck. Br. of Appellants at 12. Rather, we find this temporal proximity added to the probative value of the evidence. As stated earlier, evidence of ill will between Seifert and the appellants' family, as demonstrated in Morgan's verbal harassment, was probative to show motive. This made it more likely than not that they were the culprits responsible for the damage to her truck. Any prejudicial effect was outweighed by the probative value of Seifert's testimony. Thus, we hold that the challenged evidence of prior harassment was admissible under ER 404(b).
We reject Jacobson's and Morgan's argument that the harassment was not proved by a preponderance of the evidence. The proof burden was satisfied because, as the victim of the harassment, Seifert had first-hand knowledge of the prior bad acts and her testimony constituted substantial evidence that the harassment occurred. See State v. Benn, 120 Wn.2d 631, 653, 845 P.2d 289 (1993); cf. State v. Terry, 10 Wn. App. 874, 880, 520 P.2d 1397 (1974) (holding uncharged crime must be shown by more than hearsay evidence).
Finally, even if the court erred by admitting evidence of the prior harassment, such error was harmless. Other overwhelming evidence established guilt, particularly Congdon's eyewitness account. Not only did he see Morgan and Jacobson hanging around near the vehicles for more than an hour before the malicious acts, but he saw them running from the scene immediately after he heard the loud bashing noises. No one else was in the vicinity at the time. In addition to Congdon's testimony, the Battens' testimony also placed them at the Brentwood Apartments. These witnesses contradicted Morgan's and Jacobson's statements to Officer Peninger denying their presence at the apartments that evening. Such denial gave rise to a reasonable inference of guilty knowledge, as the trial court noted in its oral ruling. Thus, even without evidence of the prior harassment, the record supports the trial court's findings and conclusions that Morgan and Jacobson were guilty of first degree malicious mischief.
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.
WE CONCUR: MORGAN, J., HUNT, J.