State v. Binkin

• Decision Date: 05 September 1995
• Docket Number: No. 33491-3-I,33491-3-I
• Citation: 79 Wn.App. 284,902 P.2d 673
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Oleg BINKIN, Appellant.

Page 284

79 Wn.App. 284

902 P.2d 673

The STATE of Washington, Respondent, v. Oleg BINKIN, Appellant.

No. 33491-3-I.

Court of Appeals of Washington Division 1.

Sept. 5, 1995.

Publication Ordered Sept. 28, 1995.

Douglas Ende, Vashon, for appellant.

Pamela Mohr, King County Deputy Prosecuting Attorney, Seattle, for respondent.

AGID, Judge.

Oleg Binkin appeals his conviction for one count of felony harassment arising from an incident during which he telephoned his estranged wife, Zinaida (Zena), and threatened to kill her. ¹ Binkin contends the trial court erred in admitting evidence under ER 404(b) and ER 403 of his prior threat to harm Zena's unborn child. He further contends the prosecutor committed misconduct by remarking that it was easy for Binkin to simply deny the charges against him. We hold that, while the court erred in failing to determine whether Binkin made the prior threat before admitting testimony about it, the error was harmless because Zena's trial testimony is substantial evidence that he did so. We also conclude that the prior threat was properly admitted to establish an element of the crime, i.e., that Zena reasonably feared that Binkin would carry out the threat. Finally, we reject Binkin's misconduct argument because, read in context, the prosecutor's statement was actually a permissible comment on Binkin's credibility. Accordingly, we affirm the conviction.

FACTS

Binkin and Zena emigrated from the Soviet Union to the United States in July 1991. In November 1991, the couple separated, and Zena sought custody of their son, Misha. Binkin insisted that Zena's friend, Igor, not be present during Misha's visitations with Zena, but the couple agreed to try and resolve the custody issue through mediation. After three mediation sessions, they were unable to reach an agreement. The final session was held on December 23, 1992. According to Zena, Binkin telephoned her the following morning and proposed to allow Misha to see Igor in exchange for Zena's agreement to pay Binkin's attorney fees. After Zena declined his offer, Binkin began "cursing" her in a "very aggressive" tone. Between about 10 a.m. and 2 p.m., Binkin called Zena four times. During the last phone call, he spoke in an "excited" tone, threatening Zena that he would get what he wanted. In his final threat, Binkin told Zena, " 'Remember I will kill you. If I am unable to kill you physically, I will kill you morally." Upon hearing this threat, Zena hung up the telephone. ² She was extremely distressed and believed Binkin was capable of carrying out the threat because his aggressive behavior was increasing as time went on.

Around 3 or 4 p.m., Misha telephoned Zena from Binkin's apartment and told her he did not want to see Igor. At trial, Misha testified that Binkin told him to say this. Binkin denied telling Misha what to say. As a result of this telephone conversation with her son, Zena became even more upset. She tried to call Binkin back twice, but he hung up on her. Faina Israel, a close friend of Zena's, testified that on the afternoon of December 24 she received an hysterical phone call from Zena. When she reached Zena's apartment, Faina found Zena in an "incoherent", "almost ... catatonic" state. Zena was rocking herself and sobbing.

Binkin's threat to kill Zena formed the basis of the State's charge against him for felony harassment. Prior to trial, the State filed a motion in limine seeking admission of prior bad acts evidence under ER 404(b). According to the State's offer of proof, after their mediation session on December 23, Binkin threatened, referring to Zena's unborn child, to "drag that animal out of your body and trample it under my feet". ³ The defense argued that the prior threat had not been proved, that proof of the threat was not necessary to prove the crime and that the testimony would be unduly prejudicial. Based on the State's offer of proof and arguments of counsel, the trial court ruled the evidence admissible, reasoning it was "relevant and probative of the malicious intent to commit the offense and of Ms. Binkin's state of mind".

DECISION

Binkin contends the trial court erred on both procedural and substantive grounds by admitting his prior threat to kill Zena's unborn child. First, he argues that the evidence was inadmissible because the court failed both to determine whether Binkin actually made the threat and to balance the prejudicial impact of the evidence against its probative value. Next, he argues that, since neither Zena's state of mind nor Binkin's intent was a disputed issue at trial, the evidence was not necessary to prove any element of the crime of harassment. We analyze these arguments in turn.

Under ER 404(b):

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.

Before admitting ER 404(b) evidence under one of the exceptions, the trial court must first determine that the evidence is logically relevant and necessary to prove an essential element of the crime charged. Next, it must decide whether, under ER 403, the probative value of the evidence outweighs its prejudicial effect. State v. Barker, 75 Wash.App. 236, 242, 881 P.2d 1051 (1994). When the prior act could be an offense if charged, the court must be satisfied by a preponderance of the evidence that the act actually occurred. State v. Benn, 120 Wash.2d 631, 653, 845 P.2d 289, cert. denied, --- U.S. ----, 114 S.Ct. 382, 126 L.Ed.2d 331 (1993); State v. Tharp, 96 Wash.2d 591, 594, 637 P.2d 961 (1981). The decision to admit evidence of the defendant's prior acts will not be reversed absent an abuse of the court's discretion. State v. Powell, 126 Wash.2d 244, 258, 893 P.2d 615 (1995).

The first issue we address is whether there is evidence that Binkin actually made the threat. In response to the State's motion in limine to admit evidence of Binkin's prior threat, the defense argued:

Allowing the prior acts is not necessary to prove that a threat to kill would cause someone fear. And I do believe that especially when it's unproven. There were witnesses who could supposedly have been there. Reading from the police reports, neither of these witnesses can confirm the threats on 12/23 took place.

(Italics ours.) Despite this objection, the trial court did not hear testimony to determine whether the State could prove by a preponderance of the evidence that Binkin actually made the threat. The State argues that the court did not have to hear testimony to reach that conclusion because its offer of proof was a sufficient basis on which to conclude that the event actually occurred. Where the existence of a prior bad act is contested, the trial court should conduct a pretrial hearing so that it can hear the testimony and determine which version is more credible. State v. Stanton, 68 Wash.App. 855, 865, 845 P.2d 1365 (1993) ("uncharged act must be proved by a preponderance of evidence before it can be admitted under ER 404(b)"); ⁴ see Benn, 120 Wash.2d at 653, 845 P.2d 289 ("trial court's preliminary finding" that a prior bad act was proved by a preponderance of the evidence will be upheld if supported by substantial evidence (italics ours)). It was therefore error to admit the testimony without first making the required finding.

The State also contends it proved the act occurred by presenting Zena's testimony describing the threat at trial. While this is procedurally incorrect under Benn and Stanton, we agree with the State that the error is harmless because Zena's trial testimony is substantial evidence to support the finding that Binkin made the prior threat. Had the trial court found Zena's version of the events to be uncredible, it would have reversed its ruling. When there is testimony at trial establishing the validity of the State's proffered version of the event, it would be a useless act to remand for a new trial in which the court would make the same finding after a pretrial hearing. ⁵

Binkin further argues that the trial court's failure to balance the probative value of the prior bad act evidence against its prejudicial effect precludes appellate review. Although the trial court erred in failing to articulate its balancing process, this error is harmless when the record as a whole is sufficient to permit appellate review. Stanton, 68 Wash.App. at 864, 845 P.2d 1365; State v. Bowen, 48 Wash.App. 187, 191, 738 P.2d 316 (1987). Here the court indicated on the record the purposes for which it found the evidence admissible, and that record is sufficient to allow this court to review its admissibility under ER 404(b). Bowen, 48 Wash.App. at 191, 738 P.2d 316.

The trial court's failure to balance the probative value of the evidence against its prejudicial effect requires this court to engage in the balancing process that the court should have conducted. Stanton, 68 Wash.App. at 864, 845 P.2d 1365; ER 403. The evidence that Binkin threatened to kill Zena's unborn child was certainly offensive, and the jury was likely to conclude that if Binkin made the first threat he was more likely to have made the second one. On the other hand, because the prior threat occurred so closely in time to the charged crime, it was highly probative of whether Zena's fear was objectively reasonable. Further, the second threat was egregious enough on its own to have already put the defendant in a bad light before the jury. Finally, as we discuss below, the evidence was relevant to prove an element of the crime. Its prejudicial effect therefore did not outweigh its probative value.

Binkin argues that the State did not need to present the evidence of his prior threat to prove either his malicious intent or Zena's state of mind because neither of these elements of the charged crime of...