Opinion
No. 50854-7-I.
Filed: February 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-1-08165-5. Judgment or order under review. Date filed: 07/19/2002.
Counsel for Appellant(s), Oliver Ross Davis, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Jason Brett Saunders, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Cheryl L Snow, King Co Pros Office, W554, 516 3rd Ave, Seattle, WA 98104-2390.
Evidence of other bad acts is admissible if offered to prove identity where identity is at issue and where the probative value substantially outweighs any prejudicial effect. ER 404(b). Here, the trial court took the proper steps in admitting the challenged evidence of the prior crime. Further, our review of the issues presented in Williamson's statement of additional grounds for review pursuant to RAP 10.10 as well as his pro se brief shows no error. The conviction is affirmed.
ER 404(b) states:
Other Crimes, Wrongs, or Acts. 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.
FACTS
Because this matter does not warrant publication, a detailed recitation of the facts is omitted. The facts are well known to the parties.
At a pretrial CrR 3.6 hearing, Detective Lopez and 13-year-old K.H. testified regarding identification of Williamson and the photo montage procedure. The trial court found that the procedure and identification were proper and admitted K.H.'s identification of Williamson from the photo montage for trial. At the same hearing Detective Lopez testified that after the photo montage was completed she told K.H. that Williamson was a suspect in at least one other case with facts similar to her own case and gave K.H. a picture of Williamson. K.H. also testified to this conversation and indicated that she showed the picture to her family before throwing it away. Because the trial court found this post montage conversation to be overly suggestive to K.H., or that it might taint any later in-court identification of Williamson by the victim, it suppressed any in-court identification of Williamson by K.H.
In addition, the trial court held an ER 404(b) hearing regarding the admission of a similar incident and the resulting municipal court conviction. Over objection, the trial court admitted evidence of this indecent exposure incident on a bus. The court did so after hearing argument on two separate days, after rereading appropriate case law, and after reiterating there were a number of factors it was directed to view. Specifically, the court found that two incidents of indecent exposure on a bus were unusual and unique because the aggressor and victim were in an enclosed space wherein they could not leave unless the bus stopped. The court noted that incidents of this type usually occurred in places where the perpetrator could leave quickly; however, at the time of these incidents there were other people on the bus who could have witnessed the incident or could have come to the assistance of a victim. The court noted the perpetrator also used a newspaper as a screen and attempted to gain the attention of the victim once seated across from her. The court found the similarity of the age, race, and gender factors between the two incidents was important. The court mentioned there had been some gender confusion with regard to one of the victims of the later incident, but that the important thing was the appearance of the individual to those at the scene. Recognizing that the testimony could be prejudicial, the trial court found the second incident was more probative than prejudicial regarding the conduct and ordered that the ER 404(b) testimony could be put before the jury.
Williamson denied being involved in the incident with K.H., turning the main issue at trial into one of identity. The jury convicted Williamson of the charge of felony indecent exposure. He appeals, and asserts the trial court erred in admitting evidence of the later incident of indecent exposure for which he was previously convicted.
DISCUSSION
To admit evidence of other wrongs, the trial court must (1) find by a preponderance of the evidence that the misconduct/uncharged acts probably occurred; (2) identify the purpose for which the evidence will be admitted; (3) find that the evidence is materially relevant to that purpose; and (4) balance the probative value of the evidence against any unfair prejudicial effect the evidence may have on the fact-finder.
State v. Kilgore, 147 Wn.2d 288, 292, 53 P.3d 974 (2002) (citing State v. Pirtle, 127 Wn.2d 628, 649, 904 P.2d 245 (1995)); State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995).
The record establishes the four factors were met. Further, even if we were to find error in the admission of the ER 404(b) evidence, it is not an error of constitutional magnitude and only requires reversal if there was a reasonable probability that the error affected the outcome of the trial. Here, two separate witnesses identified Williamson as the person who committed the crime. K.H. positively identified him through the photo montage. The bus driver identified him in court. Williamson testified on his own behalf and the jury had an opportunity to assess his credibility. The error, if any, would be harmless considering the overwhelming evidence as a whole.
State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993).
State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).
Pursuant to RAP 10.10, and through his own pro se brief, Williamson challenges his conviction based generally on two claims: (1) that his due process rights were violated through a discovery violation, and (2) that admission of his identity through use of the photo montage was reversible error, and that the court also erred in failing to allow in-court identification by K.H.
The State failed to respond to these issues but a resort to the record shows no support for Williamson's claims. As to his claim of a discovery violation, the record is incomplete whether Williamson actually received his missing discovery, but there can be little doubt that he was apprised of the results of the witness interview by the time he went to trial. He fails to show how his due process rights were violated. Running throughout his discussion of this issue is an allegation that the State somehow surprised him with a witness and there is some confusion as to the gender and race of the witness. But there is no proof in the record that the witness ever testified or was a surprise witness, or that there was misconduct or arbitrary action by the State. Williamson also included an allegation that he was subject to ineffective representation by counsel as to the discovery violation. The record does not support the claim. Also within Williamson's claim is an allegation that the prosecutor committed misconduct in closing argument. His claim is not supported by the record.
As to identification issues, reviewing the testimony from the pretrial hearing, and the decision of the trial court, there is nothing in the record before the court to show that the trial court erred. There is no evidence that the photo montage procedure was improperly suggestive. The trial court properly determined that the resulting identification was admissible at trial. While the montage is not before this court, there is nothing in the record to show that the out-of-court photographic identification violated due process by being impermissibly suggestive so as to create a substantial likelihood of irreparable misidentification. After Detective Lopez completed the photo montage identification, she told K.H. that the person she identified was a suspect in another case and gave her a picture of Williamson. Therefore the court suppressed any in-court identification of Williamson by K.H. at trial because the detective may have created a possible suggestive bias for a later identification of the defendant. Contrary to Williamson's argument, this ruling was to his benefit. The trial court was being cautious in the ruling regarding identification, and there is no error in refusing to allow the victim to make an in-court identification considering the facts elicited at the pretrial hearing. The trial court did not abuse its discretion.
State v. Vickers, 148 Wn.2d 91, 118, 59 P.3d 58 (2002).
The conviction is affirmed.
COLEMAN and APPELWICK, JJ., concur.