State v. Holmes
| Decision Date | 10 April 1986 |
| Docket Number | No. 6931-1-III,6931-1-III |
| Citation | 717 P.2d 766,43 Wn.App. 397 |
| Parties | STATE of Washington, Respondent, v. David John HOLMES, Appellant. |
| Court | Washington Court of Appeals |
Irene Cleavenger, Richland, for appellant.
C.J. Rabideau, Pasco, for respondent.
David J. Holmes appeals his conviction of attempted second degree burglary, challenging (1) admission of evidence concerning two prior theft convictions and (2) validity of the prior convictions. We reverse and remand for a new trial.
On June 25, 1984, Pasco police officer Robert Martin responded to a call concerning an attempted burglary at the home of Mr. and Mrs. Norris Thompson. Mrs. Thompson, visibly upset and having difficulty breathing, 1 related she was awakened by noises at her bedroom window. She pulled the curtain open and reported seeing a man's face directly against the window.
Upon investigation, the police discovered a screen had been removed from the window where Mrs. Thompson had seen the face. The window was dusted and fingerprints were discovered that were identified as those of the defendant, David Holmes. Additionally, a neighbor gave police the description of an individual she had seen within 1 1/2 blocks of the Thompson home that same day. The police later arrested Mr. Holmes based partially on the witness' identification of a composite likeness. A jury convicted Mr. Holmes of attempted second degree burglary, RCW 9A.28.020 and 9A.52.030(1), and he was sentenced to prison for a maximum of 5 years.
The dispositive issue on appeal is whether the trial court erred when it decided under ER 404(b) the State could prove intent by admitting two prior juvenile convictions for second degree theft. In order to prove the crime of attempted second degree burglary, 2 one of the elements the State had to prove was intent--the same intent required in proof of second degree burglary. State v. Bergeron, 105 Wash.2d 1, 4, 711 P.2d 1000 (1985); State v. Allen, 101 Wash.2d 355, 359, 678 P.2d 798 (1984). According to State v. Johnson, 100 Wash.2d 607, 622-27, 674 P.2d 145 (1983), when burglary is charged, the State must prove beyond a reasonable doubt what crime a person intended to commit when he enters or remains unlawfully in a building. Under the facts in this case the alleged felon had done no more than remove a window screen, severely limiting the prosecutor's ability to prove what crime was intended once the building was entered. Faced with this dilemma, the prosecutor sought to admit Mr. Holmes' prior convictions for robbery, burglary, possession of stolen property, theft, and possession of marijuana to prove that the crime he intended to commit once he entered the home was theft. The trial court allowed only two prior juvenile convictions for second degree theft, ruling the prejudicial effect of admitting the other convictions outweighed their probative value.
ER 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted 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 evidence can be admitted pursuant to this rule, two criteria must be met: (1) the evidence must be shown to be legally relevant to a material issue before the jury; and (2) if the evidence is relevant, its probative value must outweigh its potential for prejudice. State v. Terrovona, 105 Wash.2d 632, 716 P.2d 295 (1986); State v. Robtoy, 98 Wash.2d 30, 42, 653 P.2d 284 (1982); State v. Anderson, 41 Wash.App. 85, 100, 702 P.2d 481 (1985). The rule requires a showing that even though logically relevant, evidence must also be legally relevant. Logically relevant evidence may be declared inadmissible on policy grounds. R. Lempert & S. Saltzburg, A Modern Approach to Evidence § 1, at 146 (1977). Although the two prior juvenile convictions for theft may arguably be logically relevant if you accept the basic premise of once a thief, always a thief, it is not legally relevant. It is made legally irrelevant by the first sentence in ER 404(b). The only reason the two convictions were admitted was to prove that since Mr. Holmes once committed thefts, he intended to do so again after entering the Thompson home. This falls directly within the prohibition of ER 404(b).
The trial court on the record carefully weighed the probative value of the offered criminal acts...
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State v. Fisher
...prior misconduct is inadmissible to demonstrate the accused's propensity to commit the crime charged. ER 404(b); State v. Holmes, 43 Wash.App. 397, 400, 717 P.2d 766 (1986) (rejecting the "once a thief, always a thief" rationale for admitting evidence). However, ER 404(b) allows the introdu......
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In re Detention of Turay
...or acts is presumptively inadmissible to prove character and show action in conformity therewith. ER 404(b)"); State v. Holmes, 43 Wash.App. 397, 400, 717 P.2d 766 (1986) ("When the sole purpose of the other crimes evidence is to show ... propensity... there is no room for ad hoc balancing.......
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State v. Thach
...acts is not admissible to prove the character of a person in order to show action in conformity therewith." ER 404(b); State v. Holmes, 43 Wash.App. 397, 400, 717 P.2d 766, review denied, 106 Wash.2d 1003 (1986). "To admit evidence of other wrongs, the trial court must (1) find by a prepond......
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State v. Wade, 22287-6-II.
...is established, then other reasonable inferences, such as intent or motive, can logically flow from introduction of the prior acts. In State v. Holmes, the defendant was charged with burglary; the State sought to introduce previous theft convictions to show intent in the charged act. State ......