Opinion
No. 60011-7-I.
June 16, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-08756-5, Nicole Machines, J., entered May 9, 2007.
Affirmed by unpublished per curiam opinion.
Edward Warrington III appeals his conviction for second degree theft, contending the court abused its discretion by allowing evidence of prior bad acts. We find no abuse, and affirm.
BACKGROUND
The State charged Warrington with theft in the second degree for stealing Trevor Short's laptop computer and digital camera when Warrington stayed overnight at Short's apartment.
Prior to trial, Warrington indicated there was a factual dispute about whether Short invited Warrington to his apartment or whether Warrington showed up unannounced. To refute Warrington's claim that he had been invited, the State sought to elicit Short's testimony that, though he had allowed Warrington to stay over before, he had heard things that discouraged him from doing so on this occasion.
Warrington objected, arguing that reference to his prior criminal history or drug use would be unduly prejudicial. The State offered to avoid any reference to the specific reasons Short did not want Warrington in his home, and the court agreed this approach was "about as innocuous as you can get." Report of Proceedings (RP) (Dec. 12, 2006) at 29.
Warrington renewed his objection before Short testified. The court ruled the evidence was admissible, explaining, "I think as long as the defense is going to take the position that Mr. Warrington was invited over that night, then I think that that's something that makes it . . . relevan[t] what Mr. Short's state of mind was." Id. at 41.
At trial, Short testified he did not want Warrington to stay over on the night of the theft because "I had known that he had gotten into some trouble before that, and I really was kind of leery about having him in the house pretty much." Id. at 61. Warrington did not make another objection and sought no limiting instruction.
Short further testified that he allowed Warrington to stay over despite his reservations when Warrington showed up at his apartment unannounced. The two used the laptop to look at web sites, and Short left the laptop and a digital camera out when he went to bed. When he got up the next day, Warrington, the laptop, and the digital camera were gone. There was no indication that anyone else had been in the apartment.
Warrington testified that Short invited him over and the two watched a movie and fell asleep. Warrington said he never saw a laptop or camera. Warrington admitted he had been twice convicted of possession of stolen property and once convicted of first degree theft.
Initially unable to come to consensus, the jury eventually convicted Warrington as charged. Warrington appeals.
DISCUSSION
Decisions as to the admissibility of evidence are within the trial court's discretion, and are reversible only for abuse of that discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995); State v. Smith, 115 Wn.2d 434, 444, 798 P.2d 1146 (1990). A court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or for untenable reasons. State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997). A reviewing court considers whether any reasonable judge would rule as the trial judge did. State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002).
Before admitting evidence under Evidence Rule (ER) 404(b), 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." Thang, 145 Wn.2d at 642. This analysis must be conducted on the record. State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007).
ER 404(b) states: "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."
Warrington argues the court abused its discretion by admitting ER 404(b) evidence and by doing so without first undertaking the requisite analysis on the record. We disagree.
The State did not offer the evidence under ER 404(b), and the court did not admit it under that rule. Warrington also did not object to the evidence on that basis. Because the court was not called upon to conduct the ER 404(b) analysis, it did not abuse its discretion by failing to do so.
The State argues Warrington has waived the ER 404(b) issue by failing to object to the evidence on that basis below. Warrington's objection that the evidence was unduly prejudicial is sufficient to preserve the ER 404(b) issue on appeal. State v. Mason, 160 Wn.2d 910, 933, 162 P.3d 396 (2007).
Further, the evidence was not unfairly prejudicial. This case turned on the relative credibility of Warrington and Short. Though whether or not Short invited Warrington to his apartment is immaterial to the theft charge, the way each of them explained the conflict between their versions of events was probative of their credibility. It was reasonable to admit the evidence for this purpose. To prevent unfair prejudice, the court instructed the prosecutor to "keep it as neutral as possible." RP (Dec. 12, 2006) at 41. Short did not refer to any particular bad acts, and his testimony that he knew that Warrington had gotten into some trouble before was unlikely to arouse an emotional response or to suggest a decision on an improper basis. See State v. Cronin, 142 Wn.2d 568, 584, 14 P.3d 752 (2000).
There was no abuse of discretion. We affirm.