Opinion
No. 52130-6-I.
Filed: February 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Skagit County. Docket No. 02-1-00512-7. Judgment or order under review. Date filed: 02/27/2003.
Counsel for Appellant(s), Cheryl D Aza, WA Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Trisha Dian Johnson, Skagit County Prosecuting Attorney, 605 So. 3rd St, Mount Vernon, WA 98273-3867.
Michael Deremer contends his jury conviction for burglary should be reversed because the trial court abused its discretion in admitting evidence of prior bad acts and because the evidence is not sufficient to sustain the conviction. We affirm.
Deremer and Brittany Baughn were dating. On the evening of September 21, 2002, the two got into an argument. Deremer pushed Baughn and dumped Kool-Aid on her. She left Deremer's house but Deremer followed and continued the argument. Baughn eventually called the police but Deremer departed before they arrived. Later that evening, Baughn met two friends, Jed Luza and Beau Fey, and the three ended up at Luza's house. Very early the next morning, Deremer located Baughn at the house, appeared with a knife, and in an angry voice demanded to be let in and to talk to Baughn. When Deremer was not admitted, he kicked in the door. In the meantime, Luza left by another door and came around behind Deremer. As Luza approached, Deremer raised the knife over his head. Luza grabbed Deremer and the two struggled outside the house. Bey joined the fray. Luza later realized that he had sustained a few minor puncture wounds. Someone called the police. Deremer left before the police arrived but Luza's neighbor followed and pointed Deremer out to an officer. The officer arrested Deremer and recovered the knife.
The State charged Deremer with first degree burglary. Prior to trial, Deremer objected to the admission of evidence regarding his confrontation with Baughn before the burglary. The court ruled that the evidence could be admitted as part of the res gestae. The jury returned a conviction and Deremer has appealed.
Deremer first contends the trial court erred because it did not find the evidence of his earlier confrontation with Baughn to be relevant, because the confrontation was not part of the res gestae of the burglary, and because the court failed to balance the probative value of the evidence against its prejudicial effect.
Evidence of a defendant's other crimes or acts is not admissible to prove the defendant's character but may be admissible for other purposes. One of these other purposes is the `res gestae' or `same transaction' exception, in which evidence of other acts is admissible to complete the story of the crime on trial by showing the context in which it occurred. When the State seeks to admit evidence under ER 404(b), the trial court must (1) find that the acts probably occurred, (2) identify the purpose for admitting the evidence, (3) find the evidence materially relevant, and (4) balance the probative value of the evidence against any unfair prejudice. In doubtful cases, the evidence should be excluded. We review such decisions under an abuse of discretion standard and will affirm unless the appellant shows that the trial court's decision was manifestly unreasonable, or based on untenable reasons or untenable grounds.
ER 404(b).
State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997); State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995).
State v. Kilgore, 147 Wn.2d 288, 292, 53 P.3d 974 (2002).
State v. DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003).
State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002).
In arguing his motion in limine, Deremer's counsel stated that Baughn alleged Deremer dumped juice on her and kicked her and that charges related to that incident were pending in the Anacortes municipal court. Counsel said he did not know if the incident was res gestae, that he did not have a problem with referring to it as an altercation or argument, but that he did not want the State litigating the issue of whether the incident was an assault. The State indicated that Baughn called the police and that Deremer fled. It argued that the incident was relevant to explain why Baughn acted as she did and why Deremer was looking for her. The court allowed the evidence under a res gestae theory.
The argument that Deremer makes on appeal is slightly different than the argument he made in his motion for limine. At trial, Deremer was more concerned with the details of the fight between he and Baughn than about whether any aspect of that incident was relevant to the burglary charge. Counsel frankly conceded he did not know if the incident was res gestae and did not have a problem referring to the incident as an altercation or argument, he just did not want the State trying to prove it was a criminal offense. Nevertheless, even assuming Deremer preserved the relevance issue, we reject his contention.
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.' Without evidence of the earlier confrontation, the jury would have heard that Baughn and Deremer had been dating, and that Deremer showed up at the house where Baughn was located, demanding angrily to speak to her. With the evidence, the jury learned that Baughn and Deremer argued earlier in the day, that Deremer was very angry at Baughn, that he told her to leave the house where he was staying, but then followed her and continued the argument until she called the police. As Deremer next argues, one of the relevant issues was whether he had the intent to commit a crime against a person in the house. The earlier incident gives context to what happened later that day, explains why Baughn was afraid that Deremer was going to hurt her, and supports the State's contention that Deremer intended more than just conversation when he broke down the door. Because Baughn told her friends about the incident, it also explains why they acted as they did and why they feared Deremer. Because the evidence completed the story of how the crime came about, the trial court had a tenable basis for admitting it and did not abuse its discretion.
ER 401.
Although ER 404(b) allows prior bad acts evidence to show intent, the trial court did not explicitly admit the evidence for this reason and neither side addresses it. Because we conclude that the evidence was properly admitted as res gestae, we need not decide if it could have also properly been admitted as evidence of intent.
The court must balance the probative value of ER 404(b) evidence against its prejudicial effect on the record. Here, the trial court did not conduct a balancing on the record. However, any failure to specifically do so is harmless if the record reflects adequate reasoning and a reviewing court can determine from the record that the trial court would have admitted the evidence if it had performed the balancing test. In this case, the way the court handled the matter was appropriate because of the way it was presented. Defense counsel was not objecting so much to the fact of the earlier argument as to any effort by the State to show that the incident amounted to another crime. Counsel did not even raise the issue of prejudice. The trial court considered Deremer's argument and, with the agreement of both counsel, reached an understanding about how the State would present this evidence. Implicit in this resolution is a weighing of probative value and prejudicial impact. While it might have been better for the court to have specifically addressed the issue, we have no problem concluding that the court considered the proper factors under the circumstances of this case.
State v. Powell, 126 Wn.2d 244, 264, 893 P.2d 615 (1995).
State v. Hughes, 118 Wn. App. 713, 725, 77 P.3d 681 (2003): State v. Barragan, 102 Wn. App. 754, 758, 9 P.3d 942 (2000); State v. Carleton, 82 Wn. App. 680, 686-87, 919 P.2d 128 (1996).
Deremer next challenges the sufficiency of the evidence. A person commits first degree burglary, `if, with intent to commit a crime against a person or property therein, he . . . enters or remains unlawfully in a building and if, in entering . . . or in immediate flight therefrom, the actor . . . (a) is armed with a deadly weapon, or (b) assaults any person.' Various witnesses testified that Deremer was yelling for Baughn to come out of the house so he could talk to her. Deremer contends that the evidence shows only that he wanted to talk to Baughn and does not support the jury's determination that he intended to commit a crime against a person or property in the house.
We review a challenge to the sufficiency of the evidence by considering the evidence in the light most favorable to the State, affording it all reasonable inferences that can be drawn from the evidence, and asking whether any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. Direct evidence and circumstantial evidence are considered equally reliable.
State v. McNeal, 145 Wn.2d 352, 359-60, 37 P.3d 280 (2002).
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
Deremer had a physical confrontation with Baughn earlier in the day. He later spoke with her on the phone and called her names. He came to the house where she was located with a knife and was visibly angry. After no one would let him in, he broke down the door. He raised the knife as if to stab Luza as Luza approached him. A jury could have found that Deremer intended to do no more than talk to Baughn. But it was certainly not required to so find and could have easily concluded that Deremer's intentions included a crime against one or more of the occupants of the house. The evidence is sufficient to sustain the conviction.
Affirmed.