State v. Saltarelli

• Decision Date: 16 December 1982
• Docket Number: No. 48457-1,48457-1
• Citation: 98 Wn.2d 358,655 P.2d 697
• Parties: The STATE of Washington, Respondent, v. Anthony M. SALTARELLI, Petitioner.
• Court: Washington Supreme Court

Page 358

98 Wn.2d 358

655 P.2d 697

The STATE of Washington, Respondent, v. Anthony M. SALTARELLI, Petitioner.

No. 48457-1.

Supreme Court of Washington,

En Banc.

Dec. 16, 1982.

Seattle-King County Public Defender Assoc., Rosemary P. Bordlemay, Seattle, for petitioner.

Norman K. Maleng, King County Prosecutor, James A. Trujillo, Deputy Pros. Atty., Seattle, for respondent.

PEARSON, Justice.

Defendant appeals his conviction of second degree rape. At his trial, he did not deny having intercourse with the victim, but maintained that she consented. The issue he presents on appeal is whether evidence of a prior attempted rape of another woman 4 1/2 years previously was properly admitted to show his motive or intent to rape. We hold that it was not.

Defendant was charged with rape in the first degree. The victim testified as follows. She became acquainted with defendant at a Safeway store, where she worked as a "checker" and where defendant was a regular customer. The Defendant disputed the victim's account of the incident. He testified that he had sexual intercourse with her three times prior to the incident of July 25. He admitted to having intercourse with her on July 25, but claimed that she consented. Thereafter, the victim became upset and jumped out of his van when he told her that he loved someone else.

                victim had met defendant socially two or three times in the summer of 1979, but did not have intercourse with him on these occasions.   On July 25, 1979, defendant asked the victim to accompany him to dinner after she finished work.   She declined, complaining of a fever, but permitted defendant to drive her home in his van.   Defendant stopped the van in a private beach road, forced the victim onto a bed in the back of the van and threatened her with a knife and a small hand gun.   He forced her to undress and had intercourse with her.   Defendant drove on after he saw a police car slow down and pass by.   The victim partially dressed herself and escaped from the van when it was stopped at an intersection.   A passing motorist took her to a store, where she reported to the police that she had been raped by a man using a knife and gun
                

Over defendant's objection, the State in its case-in-chief was permitted to call another young woman, who testified to an encounter with defendant in 1975. This young woman had met defendant while working in a K Mart store, and after one date accepted an invitation to dinner at his apartment. She testified that defendant forced her into his bedroom and attempted to remove her clothes. She fled to the bathroom and subsequently escaped. She testified that she did not prosecute because defendant had threatened to harm her if she did. The jury was instructed that this evidence was to be considered "only insofar as it reflects upon the defendant's motives or intent."

The jury returned a finding of guilty to second degree rape, and defendant received a 10-year suspended sentence. He appealed his conviction on the grounds that the trial court had abused its discretion in admitting, over The admissibility of evidence of the prior assault is governed by ER 404(b).

                defendant's objection, testimony of the 1975 assault.   The Court of Appeals affirmed the conviction, holding that the testimony was properly admitted to show motive or intent.   State v. Saltarelli, 29 Wash.App. 565, 629 P.2d 1344 (1981).   We disagree with the Court of Appeals, reverse the conviction, 639 P.2d 231, and remand for retrial
                

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.

ER 404(b) is only the starting point for an inquiry into the admissibility of evidence of other crimes; it should not be read in isolation, but in conjunction with other rules of evidence, in particular ER 402 and 403. ER 402 provides that evidence which is not relevant is not admissible. Relevant evidence is defined in ER 401 as

evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

ER 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by, among other things, the danger of unfair prejudice. The applicability of this rule to evidence admitted under ER 404(b) is emphasized in the Comment to ER 404(b).

The court must determine whether the danger of undue prejudice outweighs the probative value of the evidence, in view of the availability of other means of proof and other factors. Slough & Knightly, Other Vices, Other Crimes, 41 Iowa L.Rev. 325 (1956). Previous Washington law is in accord. See State v. Whalon, 1 Wash.App. 785, 464 P.2d 730 (1970).

Therefore, in deciding whether evidence of prior crimes, wrongs, or acts is admissible, the court must consider the relevance of that evidence. In order to do this, it must As the Comment to the rules points out, prior Washington law is in accord. This court has held that evidence of prior crimes, wrongs, or acts must be closely scrutinized and admitted only if it meets two distinct criteria. First, the evidence must be shown to be logically relevant to a material issue before the jury. We have expressed the test as "whether the evidence as to other offenses is relevant and necessary to prove an essential ingredient of the crime charged." State v. Goebel, 40 Wash.2d 18, 21, 240 P.2d 251 (1952). Second, if the evidence is relevant, its probative value must be shown to outweigh its potential for prejudice. See State v. Goebel, 36 Wash.2d 367, 218 P.2d 300 (1950); State v. Whalon, 1 Wash.App. 785, 464 P.2d 730 (1970). If the evidence is admitted, an explanation should be made to the jury of the purpose for which it is admitted, and the court should give a cautionary instruction that it is to be considered for no other purpose or purposes. State v. Goebel, 36 Wash.2d 378-79, 218 P.2d 300.

                decide whether the evidence makes the existence of any fact that is of consequence to the determination of the action more or less probable.   ER 402.   If the evidence is determined to be relevant, then its probative value must be balanced against its prejudicial effect.   ER 403.   In no case, however, regardless of its relevance or probativeness, may the evidence be admitted to prove the character of the accused in order to show that he acted in conformity therewith.   ER 404(b)
                

These decisions and the rules of evidence therefore require the court to establish the relevance of similar fact evidence. In doing so, the court must identify the purpose for which the evidence is to be admitted. The purpose will be to establish a fact similar to those listed in ER 404(b). The relationship of the evidence to the identified fact must be analyzed according to ER 401. This has two aspects. First, the identified fact, for which the evidence is to be admitted, must be of consequence to the A careful and methodical consideration of relevance, and an intelligent weighing of potential prejudice against probative value is particularly important in sex cases, where the prejudice potential of prior acts is at its highest.

                outcome of the action.   The evidence should not be admitted to show intent, for example, if intent is of no consequence to the outcome of the action.   Second, the evidence must tend to make the existence of the identified fact more or less probable.   Only after the court has concluded, by consideration of both aspects, that the evidence is relevant, can it appropriately balance the probative value against the prejudicial effect under ER 403
                

Once the accused has been characterized as a person of abnormal bent, driven by biological inclination, it seems relatively easy to arrive at the conclusion that he must be guilty, he could not help but be otherwise.

Slough and Knightly, Other Vices, Other Crimes, 41 Iowa L.Rev. 325, 333-34 (1956).

In our opinion, these considerations were not taken into account in the present case, and the evidence of the 1975 assault was improperly admitted.

The evidence of the 1975 assault was admitted for the purpose of showing motive and intent. Implicit in the admission of the evidence are three conclusions: that defendant's motive and intent are facts that are of consequence to the outcome of the case; that evidence of the 1975 assault is relevant to defendant's motive and intent; and that the probative value of the evidence in establishing motive and intent outweighs its prejudicial effect. The only explanation offered by the trial court in support of admitting the evidence is its statement that "the similarity of the facts of the two events are so close that I think that would justify my reaching back almost five years to allow it in." However, the court does not explain how the similarity of the two events bears on the relevance of the first assault to defendant's motive or intent in the latter. Nor does it explain the reason motive or intent is of consequence to the outcome of a case, when the fact of intercourse is admitted by defendant and the only issue is whether the victim consented.

We note that some jurisdictions appear ready to admit evidence of prior rapes or attempted rapes to prove intent or motive. See Annot., 2 A.L.R.4th 330 § 3[b] (1980). Usually, in these jurisdictions, intent or motive is only one of a catalog of matters for which the evidence is admissible. Goins v. State, 245 Ga. 62, 262 S.E.2d 818 (1980) (evidence admissible to show intent, motive, plan, scheme, and bent of mind); Thomas v. State, 234 Ga. 635, 217 S.E.2d 152 (1975) (evidence admissible to show intent, motive, plan, scheme, bent of mind of the accused, and lack of consent of victim); State v. Hampton, 215 Kan. 907...