State v. Foxhoven

• Decision Date: 02 August 2007
• Docket Number: No. 78888-0.,78888-0.
• Citation: 161 Wn.2d 168,163 P.3d 786
• Parties: STATE of Washington, Respondent, v. Lawrence Michael FOXHOVEN, Petitioner. State of Washington, Respondent, v. Anthony Espinoza Sanderson, Petitioner.
• Court: Washington Supreme Court

163 P.3d 786

161 Wn.2d 168

STATE of Washington, Respondent, v. Lawrence Michael FOXHOVEN, Petitioner.

State of Washington, Respondent, v. Anthony Espinoza Sanderson, Petitioner.

No. 78888-0.

Supreme Court of Washington, En Banc.

Argued May 31, 2007.

Decided August 2, 2007.

Hilary A. Thomas, Whatcom County Prosecutors Office, Bellingham, WA, for Respondent.

Susan F. Wilk, Washington Appellate Project, Christopher Gibson, Nielsen Broman & Koch PL, Seattle, WA, for Petitioner.

ALEXANDER, C.J.

¶ 1 In 2004, petitioners Lawrence Michael Foxhoven and Anthony Sanderson were each found guilty of several counts of malicious mischief for etching graffiti on the windows of several businesses. The graffiti included three different "tags,"¹ two of which police concluded were used by petitioners. At their joint trial, the judge admitted evidence that each petitioner had used one of the tags on previous occasions. Petitioners claim that evidence was improperly admitted under Evidence Rule (ER) 404(b), which excludes evidence of prior bad acts when that evidence is used for the purpose of proving conformity with those actions on a different occasion. We conclude that the evidence was admissible to prove modus operandi in order to corroborate or establish the identity of the persons responsible for the graffiti vandalism charged. We, therefore, affirm the convictions.

I

¶ 2 In October 2001, graffiti was etched with acid into the windows of a number of businesses in downtown Bellingham. The graffiti consisted of three different tags: "HYMN," "GRAVE," and "SERIES." Investigating officers determined that petitioner Sanderson is associated with the tag "HYMN" and petitioner Foxhoven with the tag "SERIES." Foxhoven, Sanderson, and a third person who was associated with the tag "GRAVE" were each charged in Whatcom County Superior Court with several counts of malicious mischief for the graffiti. The third person pleaded guilty to several counts of malicious mischief, but petitioners proceeded to a joint trial before a jury.

¶ 3 Before trial, Foxhoven and Sanderson each moved to exclude any evidence of prior bad acts under ER 404(b). Foxhoven specifically objected to the admission of (1) his criminal history of graffiti from California and (2) photographs seized from Foxhoven's home that depicted graffiti involving the "SERIES" tag. CP-F² at 75. Sanderson objected to the admission of (1) his prior arrests for graffiti, (2) drawings of the "HYMN" tag seized from his home, (3) photos of him painting the "HYMN" tag, and (4) photos of graffiti involving the "HYMN" tag that were seized from his home. CP-S at 119, 123-24, 135-36. The trial judge denied the petitioners' motions, ruling, "Other acts of graffiti vandalism may be admitted to show a `common scheme or plan' or to establish a particular `modus operandi.'" CP-F at 98; CP-S at 56. In his order, the judge made the following findings of fact:

1. . . . . The State alleges that each vandal had adopted a distinctive tag (pseudonym) and vandalized property with that unique tag again and again for years until it had become their vandalism identity. The State alleges that part of the overarching scheme or plan of such vandals is to gain notoriety in the graffiti subculture by placing their adopted vandal names on the property of others. . . .

2. The "probative value" of evidence tending to show that each defendant is committed to a culture that explicitly encourages vandalism and that each defendant marks his crime with his unique signature is extremely high. In fact, such evidence is "necessary" for a fair determination of thee cases.

3. There is no "unfair prejudice." The other acts for which evidence will be admitted are not marginally related or emotionally inflammatory. Instead, they are intimately related to the alleged motive for this crime (notoriety) and not emotionally inflammatory.

4. The probative value is not outweighed by the danger of unfair prejudice.

CP-F at 97-98; CP-S at 55-56.

¶ 4 The challenged evidence was admitted in trial, with the following limiting jury instruction:

Ladies and gentlemen of the jury, evidence has been introduced in this case previously and is being introduced at this time on the subject of the defendant's association with persons accused of graffiti vandalism or prior acts of graffiti vandalism for which they're not charged here today. This is being offered by the prosecution for the limited purposes of either modus operandi or common, [sic] scheme plan or design. You're not to consider the evidence for any other purpose. I'll give you another instruction on that later on.

4 Verbatim Report of Proceedings (VRP) at 452.

¶ 5 Foxhoven was found guilty of four counts of first degree malicious mischief and 11 counts of second degree malicious mischief; Sanderson was found guilty of two counts of first degree malicious mischief and five counts of second degree malicious mischief. The judge subsequently dismissed one count against Foxhoven. He also reduced the degree of three other counts against Foxhoven and one count against Sanderson. Both petitioners received sentences that were within the standard range and were ordered to pay restitution.

¶ 6 The petitioners appealed separately to Division One of the Court of Appeals, each claiming primarily that the evidence described above was improperly admitted under ER 404(b). The Court of Appeals consolidated their appeals and affirmed the trial court, concluding, "The trial court did not err by admitting the evidence that Foxhoven and Sanderson engaged in prior acts of graffiti under the modus operandi exception to ER 404(b) because the tags were signature-like and both defendants admitted they had used the same tags before." State v. Foxhoven, 132 Wash.App. 1053, No. 54793-3-I, slip op. at 2, 2006 WL 1217213, *1 (Wash.Ct.App. May 8, 2006). The Court of Appeals did not discuss whether or not the evidence was admissible to show common scheme or plan. Foxhoven and Sanderson sought review of the Court of Appeals' decision on various grounds, and we granted review on the ER 404(b) issue only.

II

¶ 7 Interpretation of an evidentiary rule is a question of law, which we review de novo. State v. DeVincentis, 150 Wash.2d 11, 17, 74 P.3d 119 (2003). When the trial court has correctly interpreted the rule, we review the trial court's decision to admit evidence under ER 404(b) for an abuse of discretion. Id.; State v. Thang, 145 Wash.2d 630, 642, 41 P.3d 1159 (2002). "Discretion is abused if it is exercised on untenable grounds or for untenable reasons." Thang, 145 Wash.2d at 642, 41 P.3d 1159 (citing State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971)). Failure to adhere to the requirements of an evidentiary rule can be considered an abuse of discretion. State v. Neal, 144 Wash.2d 600, 609, 30 P.3d 1255 (2001) (citing State v. Rivers, 129 Wash.2d 697, 706, 921 P.2d 495 (1996)).

¶ 8 ER 404(b) prohibits a court from admitting "[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith." This prohibition encompasses not only prior bad acts and unpopular behavior but any evidence offered to "show the character of a person to prove the person acted in conformity" with that character at the time of a crime. State v. Everybodytalksabout, 145 Wash.2d 456, 466, 39 P.3d 294 (2002). The State is incorrect when it asserts that the drawings of tags and most of the photographs fall outside the scope of ER 404(b) because they do not show criminal conduct or bad acts. In our judgment, all of the evidence at issue here is prohibited by ER 404(b) if offered to prove character.

¶ 9 ER 404(b) evidence, may, however, be admissible for another purpose, such as proof of motive, plan, or identity. ER 404(b) is not designed "to deprive the State of relevant evidence necessary to establish an essential element of its case," but rather to prevent the State from suggesting that a defendant is guilty because he or she is a criminal-type person who would be likely to commit the crime charged. State v. Lough, 125 Wash.2d 847, 859, 889 P.2d 487 (1995). In this case, the challenged evidence was offered and admitted "to show a `common scheme or plan' or to establish [identity via] a particular `modus operandi.'" CP-F at 98; CP-S at 56.

¶ 10 Before admitting ER 404(b) evidence, a trial court "must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect." Thang, 145 Wash.2d at 642, 41 P.3d 1159 (citing Lough, 125 Wash.2d at 853, 889 P.2d 487). This analysis must be conducted on the record. State v. Smith, 106 Wash.2d 772, 776, 725 P.2d 951 (1986) (citing State v. Jackson, 102 Wash.2d 689, 694, 689 P.2d 76 (1984)). If the evidence is admitted, a limiting instruction must be given to the jury. Lough, 125 Wash.2d at 864, 889 P.2d 487. As noted above, such an instruction was given to the jury in this case.

¶ 11 Petitioners are challenging the third requirement: relevance. To be relevant, evidence must tend "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable." ER 401; see also Smith, 106 Wash.2d at 776, 725 P.2d 951 (quoting State v. Saltarelli, 98 Wash.2d 358, 362-63, 655 P.2d 697 (1982)). The trial court is generally the proper court to weigh the relevance of evidence, and this court reviews such a determination for abuse of discretion. Lough, 125 Wash.2d at 861, 889 P.2d 487.

¶ 12 This court has previously held:

When evidence of other bad acts is introduced to show identity by establishing a unique modus operandi, the evidence is relevant to the current charge "only if the method employed in the commission of both crimes...