STATE OF WASHINGTON v. FLORES

• Decision Date: 22 April 1999
• Docket Number: No. 16811-5-III,No. 17337-2-III,16811-5-III,17337-2-III
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, RESPONDENT, v. JOSEPH R. FLORES, APPELLANT.

[1]
[2]	STATE OF WASHINGTON, RESPONDENT,; v.; JOSEPH R. FLORES, APPELLANT.
[3]	No. 16811-5-III No. 17337-2-III
[4]	Washington Court of Appeals
[5]	Source of Appeal: Appeal from Superior Court of Benton County Docket No: 96-1-00618-5 Judgement or order under review Date filed: 07/30/1997 Judge signing: Hon. Philip M. Raekes
[6]	April 22, 1999
[7]	Counsel: Counsel for Appellant(s) Kevin L. Holt 4018 W Clearwater Ave #b Kennewick, WA 99336-2630 Counsel for Respondent(s) Andrew K. Miller Benton County Prosecutor #e 7320 W Quinault Kennewick, WA 99336 John V. Jensen Benton Co Prsc Atty Offce 7320 W Quinalt Kennewick, WA 99336 Counsel for Other Parties Lisa Lang (Appearing Pro Se) Official Court Reporter PO Box 3051 Tri-Cities, WA 99302 John McLaughlin (Appearing Pro Se) Official Court Reporter PO Box 3051 Tri-Cities, WA 99302
[8]	The opinion of the court was delivered by: Schultheis, C.j.
[9]	Judges: Authored by John A. Schultheis Concurring: Frank L. Kurtz Kenneth H Kato
[10]	Panel Seven
[11]	[Editor's note: originally released as an unpublished opinion]
[12]	Joseph Flores was convicted of 16 counts of unlawful practice of law. During his jury trial the State elicited testimony from several witnesses that Mr. Flores misappropriated funds or did not render services after he was paid. On appeal, he contends the trial court erred in (1) allowing evidence of fraud; (2) failing to dismiss the counts based on assisting clients with immigration issues; (3) failing to dismiss the counts based on Department of Labor and Industries (L&I) claims; and (4) denying his motion for change of venue on three counts. Additionally, he claims insufficient evidence to support the verdict and he challenges the imposition of restitution.*fn1
[13]	We affirm.
[14]	Facts
[15]	In October 1996, Mr. Flores was charged by information with four counts of unlawful practice of law, RCW 2.48.180. The information was later amended to 31 counts. Each count alleged that Mr. Flores held himself out to individual clients as licensed to practice law.
[16]	At trial, 23 of the alleged victims appeared and testified. Many of them were Hispanic and had little or no ability to read or write English. Most testified that Mr. Flores told them he was an attorney. Most had paid him something, and all testified they had not received sufficient representation. Mr. Flores objected to the introduction of any evidence that he defrauded his clients by failing to do the work or by misappropriating funds. He noted that the State chose to charge him only with unlawful practice of law, not fraud. Based on a theory of res gestae, the trial court allowed the State to show that Mr. Flores was paid for legal services he did not provide, but the court did not allow testimony that showed additional crimes, such as forgery or misappropriation of settlements.
[17]	At the Conclusion of the State's evidence, it moved to amend the information to align with the 23 witnesses who testified. The motion was granted without objection. Mr. Flores then moved for dismissal of the counts based on immigration matters and L&I claims. He also moved to dismiss some counts for lack of venue and others for insufficient evidence. Although these motions were denied, the court granted a defense motion to remove those charges based on Mr. Flores's assistance with tax preparation. The defense rested without presenting witnesses.
[18]	The jury found Mr. Flores guilty on 16 of the 23 counts. Six of those counts involved immigration issues and two involved L&I claims. He was sentenced on July 30, 1997. A restitution hearing planned for December 10 was continued to January 9, 1998, and again to January 23, when the hearing was actually held. When Mr. Flores argued there was no nexus between the crimes charged and the proposed restitution, the court requested further briefing and continued the hearing. Defense counsel's suggestion to continue the matter two weeks was accepted and the hearing was set for February 6, 185 days after sentencing. Apparently the trial Judge was unavailable for the February 6 hearing and additional hearing dates set for February 13, February 20, February 27 and March 6. The Judge issued a memorandum decision on February 17, 1998, and the order of restitution was finally entered on March 18. Mr. Flores appeals both the Judgement and the order of restitution.
[19]	Testimony of Fraud
[20]	Mr. Flores first contends the trial court erred in allowing the State to elicit testimony from the witnesses that they did not receive adequate services for their payments or that he misappropriated their funds. This testimony inferred fraud, he argues, which is not relevant to the crimes charged, is impermissible evidence of character (ER 404) and is prejudicial (ER 403).
[21]	ER 404(b) prohibits the admission of evidence of other crimes, wrongs or acts to prove the character of a person. This evidence may be admissible, however, for such purposes as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." ER 404(b). Another court established exception is the "res gestae," or "same transaction" exception to ER 404, which admits evidence of other crimes to "complete the story of the crime" by establishing the immediate context of its time and place. State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997), cert. denied, 118 S. Ct. 1192 (1998); State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995).
[22]	We review a trial court's admission of evidence for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). In deciding whether to admit evidence of other crimes under ER 404(b), the trial court must find (1) that the evidence is relevant to a material issue, and (2) that the probative value of the evidence outweighs its potential for prejudice. Lane, 125 Wn.2d at 831-32. The court must identify on the record the purpose for which the evidence is admitted. Brown, 132 Wn.2d at 571.
[23]	The trial court here found that the witnesses' testimony regarding the fees paid to Mr. Flores was relevant to the crime of unlawful

...