Opinion
No. 26927-2-III.
March 10, 2009.
Appeal from a judgment of the Superior Court for Chelan County, No. 07-1-00270-8, Ted W Small, J., entered March 10, 2008.
Affirmed by unpublished opinion per Schultheis, C.J., concurred in by Kulik and Korsmo, JJ.
Jason Lee McDaniel appeals his conviction for the third degree assault of a police officer. He argues that the court abused its discretion by permitting evidence of his arrest for domestic violence assault. We disagree and affirm.
FACTS
Officer Scott Reiber of the Wenatchee Police Department responded to a disturbance call at the McDaniel residence at 5:30 p.m. After taking information at the residence, Officer Reiber went to look for Mr. McDaniel in his patrol car. He received a radio report of harassment involving Mr. McDaniel about a half mile from the original location.
Upon responding to the second location within one-half hour, Office Reiber saw Mr. McDaniel walking down the street carrying a wood chair. Officer Reiber identified Mr. McDaniel, told him to put the chair down, and informed him he was under arrest for domestic violence assault. Mr. McDaniel was noncompliant, very agitated and red, and yelled profanities.
Officer Reiber armed himself with a beanbag shotgun to take Mr. McDaniel into custody. Sergeant Mark Huson, armed with a stun gun, arrived to assist. Mr. McDaniel was transported to jail, about a mile away, for booking. At the jail, Mr. McDaniel was uncooperative and aggressive toward the officers. Mr. McDaniel became particularly agitated when Officer Reiber referred to Mr. McDaniel as "Mr. Daniels," which is the name of Mr. McDaniel's wife's ex-husband.
The officers attempted to take Mr. McDaniel to the ground to control him. They got Mr. McDaniel down on his side. He kicked and resisted being restrained on his stomach. Sergeant Huson got his foot between Mr. McDaniel's legs, and Mr. McDaniel kicked Sergeant Huson off of his feet, hyperextending Sergeant Huson's leg. The officers ultimately used a stun gun to control Mr. McDaniel. Mr. McDaniel was charged with third degree assault of a police officer.
At trial, Mr. McDaniel moved to exclude any evidence of the domestic violence assault or arrest as improper propensity evidence. The State argued that the evidence was part of the res gestae. The court ruled that although the facts related to the domestic violence report would be excluded, the fact that Officer Reiber responded to a domestic violence assault would be admissible. The court also informed defense counsel that the matter could be revisited as the matter proceeded and a cautionary instruction would be allowed if requested prior to the specific testimony or before deliberations. The defense did not avail itself of these offers.
The jury found Mr. McDaniel guilty of third degree assault.
DISCUSSION
Mr. McDaniel contends the trial court erred by admitting testimony that he committed the third degree assault while being arrested for domestic violence. Mr. McDaniel asserts the domestic violence testimony is prohibited by ER 404(b) and is not relevant to the crime of third degree assault.
We review a trial court's evidentiary rulings for an abuse of discretion. State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). A trial court abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds or reasons. State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997).
ER 404(b) prohibits the admission of evidence to show the character of a person to prove the person acted in conformity with it on a particular occasion. State v. Everybodytalksabout, 145 Wn.2d 456, 466, 39 P.3d 294 (2002). But crimes or misconduct different from the acts for which a defendant is charged may be admitted for other reasons, including proof of motive, intent, and the circumstances surrounding the alleged crime. ER 404(b). In addition to the nonexhaustive list of exceptions, our Supreme Court has recognized a res gestae or "same transaction" exception to the rule. Brown, 132 Wn.2d at 570-71; State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995).
To admit evidence of other crimes or misconduct under ER 404(b), the trial court must identify on the record why it is admitted. Even if otherwise admissible for a valid purpose, ER 404(b) evidence still must be relevant to a material issue and its probative value must outweigh its prejudicial effect. Relevant evidence makes the existence of a consequential fact more or less probable. Brown, 132 Wn.2d at 571.
Under the res gestae exception, evidence of other crimes or misconduct is admissible to complete the crime story by establishing the immediate time and place of its occurrence. Id. "Where another offense constitutes a `link in the chain' of an unbroken sequence of events surrounding the charged offense, evidence of that offense is admissible `in order that a complete picture be depicted for the jury.'" Id. (quoting State v. Tharp, 96 Wn.2d 591, 594, 637 P.2d 961 (1981)).
Here, the court properly allowed testimony about Mr. McDaniel's arrest for domestic violence under the res gestae exception. The process of weighing relevance and prejudicial value against the probative value is set forth on the record. State v. Barragan, 102 Wn. App. 754, 759, 9 P.3d 942 (2000); State v. Carleton, 82 Wn. App. 680, 685, 919 P.2d 128 (1996) (if the record reflects that the trial court adopted the express argument of one of the parties as to the relative weight of probative value and prejudice, there is no error). There was no abuse of discretion.
Affirmed.
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.
KULIK, J. and KORSMO, J., concur.