Opinion
No. 25080-6-III.
August 28, 2007.
The State charged Elias Barajas Acevedo with attempted first degree murder. The jury found him guilty of the lesser crime of attempted second degree murder. On appeal, he claims the trial court erred in granting the State's request for an instruction on the inferior degree offense of attempted second degree murder and in admitting certain ER 404(b) evidence. We affirm.
FACTS
On January 18, 2003, the Yakima County sheriff's office received a 911 call involving a domestic violence dispute between Elias Barajas Acevedo and Zoila Villa. When officers arrived at the location of the call, they saw items strewn around the house and blood in various locations. It appeared to them that a fight had occurred.
One of the responding officers went directly to the hospital where he took photographs of Ms. Villa's injuries. Ms. Villa had cuts on the back of her right arm and hand, and the back of her head. The cut on her arm was about four centimeters long and deep. The cut on her head was about two centimeters long. The officer later recovered a 12-to 13-inch knife from under Ms. Villa's bed.
Officers located Mr. Acevedo's car parked down the street from Ms. Villa's house. Ms. Villa's parents, Antonio and Maria Abundiz, both told officers that they saw Mr. Acevedo run from the house after the incident. The State charged Mr. Acevedo with attempted first degree murder, domestic violence.
Before trial, the court determined the admissibility of certain ER 404(b) evidence. The State wanted to introduce evidence of Ms. Villa's and Mr. Acevedo's troubled relationship, including physical abuse, quarreling, and suicide threats, as well as Mr. Acevedo's immigration status, to provide the jury with a complete picture of the crime. Defense counsel objected, arguing that the alleged history of domestic violence between the parties was irrelevant and highly prejudicial. The court ruled that the evidence was admissible, stating, "I don't think you can understand these relationships in a vacuum." Report of Proceedings (RP) at 175.
At trial, Ms. Villa testified that she and Mr. Acevedo married in 1997 primarily to help him get a visa. The couple lived next door to Ms. Villa's parents, and had a child in 1998. After their marriage, Mr. Acevedo and Ms. Villa frequently quarreled, and Mr. Acevedo occasionally hit Ms. Villa. The first time Mr. Acevedo hit Ms. Villa, she told him she did not want to continue to live with him. He responded by threatening to kill himself, their child, and Ms. Villa. Mr. Acevedo threatened to kill himself on other occasions.
In late 2002, Ms. Villa ordered Mr. Acevedo out of the house after he kicked her in the back. He called her almost daily hoping to reconcile and begging her to delay divorce proceedings. On January 17, 2003, Mr. Acevedo showed up at Ms. Villa's workplace, crying and begging her to stay with him until he obtained his visa. Ms. Villa told him that if he continued to contact her at work, she would immediately file for divorce.
Ms. Villa got home from work about 7:30 p.m. She went to her parents' house to eat dinner and watch television. Close to midnight, she went home to sleep. Shortly thereafter she heard a noise in the back of the house. Suspecting it was Mr. Acevedo, she turned off the television and pretended to be asleep. She heard the front door open and somebody enter the kitchen and open the silverware drawer. Ms. Villa picked up her phone and started to call her parents. At that point, Mr. Acevedo opened the bedroom door and turned on the lights. Ms. Villa testified that he looked scared.
Mr. Acevedo accused Ms. Villa of cheating on him and told her he was going to kill her. He then grabbed her by the neck, choking her so hard she was unable to breathe. He attempted to put a knife at her throat. During the ensuing struggle, they both fell to the floor. At that point, Ms. Villa's father entered the bedroom. Mr. Acevedo dropped the knife and fled. Ms. Villa was taken to the hospital and treated for stab wounds.
Ms. Abundiz testified that shortly after Ms. Villa left, Ms. Villa telephoned her screaming what sounded like "stop it." RP at 281. She awakened her husband who ran next door. Mr. Abundiz testified that as he was running to Ms. Villa's house, he heard her screaming that someone was trying to kill her. As he entered the bedroom, Mr. Abundiz saw Mr. Acevedo choking Ms. Villa. Upon seeing Mr. Abundiz, Mr. Acevedo fled.
Mr. Acevedo denied any history of physical abuse against Ms. Villa. He explained that on the night in question, he went to the house to retrieve some of his possessions. He claimed he saw Ms. Villa's boyfriend on the bed and became angry. According to Mr. Acevedo, the boyfriend ran and Ms. Villa tried to hit him. They started to fight, and he noticed that she was bleeding. He denied intending to hurt or kill Ms. Villa.
Over defense counsel's objection, the court instructed the jury that attempted second degree murder is a lesser included offense of attempted first degree murder. The jury convicted Mr. Acevedo of attempted second degree murder with a special finding of domestic violence.
DISCUSSION
Lesser Included Offense Instruction
The first issue we address is whether the court properly instructed the jury that attempted second degree murder is a lesser included offense of attempted first degree murder. Mr. Acevedo contends the trial court erred in giving the lesser included instruction because an attempt to commit a specific crime can never have a lesser included offense. An alleged error of law in a criminal jury instruction is reviewed de novo. State v. Porter, 150 Wn.2d 732, 735, 82 P.3d 243 (2004).
The instruction at issue stated:
If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, the defendant may be found guilty of any lesser crime, the commission of which is necessarily included in the crime charged, if the evidence is sufficient to establish the defendant's guilt of such lesser crime beyond a reasonable doubt.
The crime of Attempted First Degree Murder necessarily includes the lesser crime of Attempted Second Degree Murder.
When a crime has been proven against a person and there exists a reasonable doubt as to which of two or more degrees that person is guilty, he shall be convicted only of the lowest degree.
Clerk's Papers at 59.
A criminal defendant generally may not be convicted of an uncharged offense. Const. art. I, § 22; State v. Markle, 118 Wn.2d 424, 432, 823 P.2d 1101 (1992). However, a defendant may be convicted of a lesser included offense of the crime charged, or a crime of a lesser degree. Markle, 118 Wn.2d at 432; RCW 10.61.003; RCW 10.61.006. "[I]f it is possible to commit the greater offense without committing the lesser offense, the latter is not an included crime." State v. Harris, 121 Wn.2d 317, 320, 849 P.2d 1216 (1993) (citing State v. Bishop, 90 Wn.2d 185, 191, 580 P.2d 259 (1978)).
RCW 10.61.003 provides: "Upon an indictment or information for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto, or of an attempt to commit the offense."
RCW 10.61.006 provides: "In all other cases the defendant may be found guilty of an offense the commission of which is necessarily included within that with which he is charged in the indictment or information."
A lesser included offense instruction is warranted when two conditions are met: (1) each of the elements of the lesser offense must be a necessary element of the offense charged (a legal test), and (2) the evidence must support an inference that the lesser crime was committed (a factual test). State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
The first prong of the test is at issue here. Thus, the question is whether each element of attempted second degree murder is a necessary element of attempted first degree murder. In other words, can the crime of attempted first degree premeditated murder be committed without committing the lesser crime of attempted second degree murder.
Mr. Acevedo was charged with attempted first degree murder with premeditation under RCW 9A.32.030(1)(a) and RCW 9A.28.020. A person commits attempted first degree murder when he takes a substantial step toward causing the death of another with premeditated intent. RCW 9A.32.030(1)(a). A person commits attempted second degree murder by taking a substantial step toward causing the death of another with intent but without premeditation. RCW 9A.32.050(1)(a).
Attempted first degree murder: (1) premeditated intent to cause death (2) substantial step
Attempted second degree murder: (1) intent (without premeditation) to cause death (2) substantial step
Considering these elements, the lesser offense of attempted second degree intentional murder is necessarily included in the greater offense of attempted first degree murder with premeditation. All but one of the elements for these crimes is the same — the element of premeditation. One must necessarily commit attempted second degree intentional murder to commit attempted premeditated first degree murder. Thus, the legal prong of the test for a lesser included offense instruction is met. The jury was properly instructed that attempted second degree murder is a lesser included offense of attempted first degree murder. ER 404(b)
Relying on State v. Avendano-Lopez, 79 Wn. App. 706, 718-19, 904 P.2d 324 (1995), Mr. Acevedo next contends that the trial court erred in allowing the State to introduce evidence of his immigration status under ER 404(b), asserting this evidence is irrelevant and prejudicial. Ms. Villa testified before trial that the primary reason she and Mr. Acevedo married was to secure a visa for him. She stated that just hours before he stabbed her, Mr. Acevedo telephoned her, imploring her to delay divorce proceedings until he secured a visa.
The State argued that Mr. Acevedo's attempt to obtain a visa through marriage to Ms. Villa was an important component of the relationship, and that Ms. Villa's threat to divorce him was a "powerful motive" to kill. RP at 171. Defense counsel argued that the evidence was irrelevant and too remote in time from the alleged crime. The trial court weighed the admissibility of the evidence, ultimately concluding that it was highly prejudicial, but that its probative value outweighed the prejudice because Mr. Acevedo's immigration status was crucial to understanding the relationship.
We review a trial court's admission of evidence under an abuse of discretion standard. State v. Tharp, 27 Wn. App. 198, 205-06, 616 P.2d 693 (1980), aff'd, 96 Wn.2d 591, 637 P.2d 961 (1981). Discretion is abused only where it can be said no reasonable man would take the view adopted by the trial court. State v. Blight, 89 Wn.2d 38, 41, 569 P.2d 1129 (1977). "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." ER 404(b). Such evidence, however, may 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); State v. Goebel, 36 Wn.2d 367, 369, 218 P.2d 300 (1950).
Before admitting ER 404(b) evidence, the trial court must determine that the evidence meets two criteria: (1) it must be logically relevant and necessary to prove an essential element of the crime charged, and (2) its probative value must outweigh the prejudicial effect. State v. Bell, 60 Wn. App. 561, 564-65, 805 P.2d 815 (1991). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401.
In this case, Mr. Acevedo's attempts to obtain a visa through his marriage to Ms. Villa, although potentially prejudicial, were relevant to motive under ER 404(b). Ms. Villa's threat to immediately divorce him, thus depriving him of a visa, provided at least one motive for Mr. Acevedo's actions on January 18. We therefore cannot say that the trial court abused its discretion in admitting evidence of Mr. Acevedo's immigration status.
Moreover, this evidence is admissible under the res gestae or same transaction exception to ER 404(b). In State v. Brown, 132 Wn.2d 529, 570-71, 573, 940 P.2d 546 (1997), the court explained that res gestae evidence is admissible because it provides the jury with a more complete picture of the events surrounding the crime.
Although the court did not explicitly mention this exception, it admitted the immigration evidence as crucial to understanding the parties' relationship. Ms. Villa's threat to divorce Mr. Acevedo just hours before the crime partly explains the story of the crime. Without this knowledge, the jury's picture of events would have been incomplete.
The case upon which Mr. Acevedo primarily relies, Avendano-Lopez, is distinguishable. There, the defendant was charged with possession of a controlled substance with intent to deliver. During trial, the prosecutor asked Mr. Avendano-Lopez, "`You are not legal in this country, are you?'" Avendano-Lopez, 79 Wn. App. at 718. The court found the question immaterial and solely designed "to incite the jury's passion and prejudice." Id. at 719-20. In this case, however, the immigration evidence assisted the jury in understanding both the relationship of the parties and Mr. Acevedo's motive. Accordingly, we conclude the probative value outweighed the prejudice.
Finally, Mr. Acevedo contends that the court erred in admitting evidence of his suicide threats. At trial, the State argued that this evidence was relevant to show the parties' domestic violence relationship, as well as motive and state of mind. The trial court allowed the evidence, finding that a complete understanding of the relationship was relevant to the domestic violence issues. It also admitted the evidence as relevant to Mr. Acevedo's motive and state of mind.
It is well settled that evidence of quarrels between the victim and the defendant in murder cases is generally admissible as probative of motive or intent. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). The Powell court explained:
Evidence of previous disputes or quarrels between the accused and the deceased is generally admissible in murder cases, particularly where malice or premeditation is at issue. "Such evidence tends to show the relationship of the parties and their feelings one toward the other, and often bears directly upon the state of mind of the accused with consequent bearing upon the question of malice and premeditation."
Id. at 261-62 (quoting State v. Davis, 6 Wn.2d 696, 705, 108 P.2d 641 (1940)).
Mr. Acevedo's suicide threats showed the abusive and hostile relationship between Mr. Acevedo and Ms. Villa. Further, because premeditation was an element in this case, evidence of Mr. Acevedo's manipulative suicide threats, which included putting a knife to his throat, were relevant to his state of mind. Accordingly, we conclude the court did not abuse its discretion in admitting the evidence.
CONCLUSION
Finding no instructional or evidentiary error, we affirm.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J., KATO, J. PRO TEM., concur.